It is not only retirement benefits that you are currently eligible for that can be awarded to your spouse in a Texas divorce. Future retirement benefits- ones that you are not even eligible for right now- are also fair game. The amount of basic pay payable to you for your pay grade and years of service is what a judge can award to your spouse, on a percentage basis. Let’s consider an example so that you can get a clearer idea of what is at stake in terms of your potential obligation.
If your spouse is awarded 50% of your future military retirement benefits in your rank as a 15 year lieutenant then you would only get 50% of what your pay would have been if you had retired as a 15 year lieutenant. Your spouse would not be eligible to receive a full amount when you retired later on and achieved a higher rank and higher pay grade.
What is your non-military spouse’s ability (if any) to receive survivor’s benefits in a divorce?
A court in Texas can order that you maintain a Survivor Benefit Plan naming your ex-spouse as the beneficiary. These plans are basically government-sponsored annuities that provide your ex-spouse with money in the event that you die and your military retirement benefits stop as a result of your death. While there will be substitute payments, the amount of those payments will not always be the same.
Can payments of military retirement benefits after a divorce be received directly from the government?
Based on your particular circumstances, it may be possible for you to receive benefits directly from the government. The specific times in which you would be eligible to do so include:
- If your ex-spouse was married to you for at least ten years while you were a member of the military, and
- Your divorce decree states that your spouse’s award of military retirement benefits is in either a specific dollar amount or as a percentage of your total retirement benefits.
To learn about their eligibility, your ex-spouse would need to apply through the Defense Finance and accounting Services and must attach a copy of your Divorce Decree with their application.
Transferring/Relinquishing Parental Visitation while serving in the military
I think it goes without saying that going through a divorce is tough on any family. This can be doubly as true for families that are servicing in the military. If you are a military servicemember then the sacrifice that you are making for all of us, your family included, is astronomical. With that said, it can be remarkably difficult to go through a divorce while facing the prospect of being deployed to a foreign country.
As a result of your being deployed it may become necessary for you to transfer temporary custody and visitation rights to your child over to a family member like a parent, uncle, aunt or sibling. You would need to speak to this family member before your deployment to go over this scenario and to develop a game plan as far as the logistics of how that would work out. You would also need to speak to and hire an experienced family law attorney to help you negotiate the terms of a settlement that allows for a person other than yourself to be awarded temporary visitation with your child while you are deployed overseas.
Talk to your child’s other parent about making your plan a reality once you are deployed
Let’s walk through some steps of how you could accomplish this in a relatively straightforward fashion. First of all, discussing this issue with your child’s other parent is the first and possibly the most important step in the process. If he or she is onboard with your plan then there is little that stands in the way of making it a reality for you and your family.
It would be necessary for your child’s other parent to be willing to take on the primary responsibilities of raising your child and having primary custody of him or her. In the event that the other parent is not willing, able or competent to step into this role you would need to address that with a judge. In the alternative, if there is an adult relative of your child that you and the other parent can agree to naming as a temporary primary managing conservator then that is another option that can be approached by you all.
Going to court in order to start the legal process
If you and your child’s parent have decided upon a game plan for how you want to handle your deployment, then you would need to file a motion to change the custody regarding your child from you to your selected family member. An order would need to be drafted that puts everything into writing and contains both your and the other parent’s signatures.
Part of this order would be comprised of a parenting plan that notes the changes in custody that are being requested. The other parent would likely be given sole custody during the time of your deployment while the selected relative of yours would be given visitation in place of what you would have been awarded had you not been deployed. If you know how long your deployment will last you can note this in your final orders. If not, you can state that once your current deployment responsibilities end you will resume your role as a conservator of your child.
What to do if the other parent is not able to care for your child
Unfortunately you may find yourself in a situation where you are being deployed to another part of the world a result of your military service but your child’s other parent is not fit to take on full time parenting responsibilities as we laid out in the prior sections of this blog. This can be a frustrating and intimidating situation due to the uncertainty surrounding your child’s life while you are gone.
However, you can also negotiate with your child’s other parent on a relative to step in and assume the role of primary caretaker that you had been filling up to this point. The relative would need to intervene into the case and state that he or she is willing to assume this role for your child. Service of all parties of the initial paperwork being filed is necessary in Texas.
How to ensure that your child will be financially care for during your deployment
Just as with any family law case that involves a child there will need to be provisions for child support built into a final order. If your child’s other parent is not appointed as the primary conservator of your child while you are gone then you would set up a manner by which that person will be able to pay the daily expenses of raising your child.
For instance, you could pay temporary child support that will be in effect for as long as your deployment lasts. This is probably the most common and straightforward way of paying support. In the alternative, you can set up a trust and have a trustee pay the relative a certain sum every month. Special payments can be issued in emergency situations if your child, for example, were to need a surgery or other medical treatment of some sort. Child support guidelines would likely go into effect especially if you were to pay child support to your child’s other parent.
Consult an experienced family law attorney to learn more about this process
If you are in a position where you need to investigate further an arrangement like the ones we discussed in today’s blog post then you absolutely need to hire an experienced family law attorney. There are specific processes that you must follow and guidelines you must keep in mind to make sure the court case completes itself in a reasonable amount of time. Most importantly- you will want to make sure that your child is cared for while you are gone in the best manner possible.
Contact the Law Office of Bryan Fagan, PLLC in order to speak to one of our attorneys about our wide range of experience in handling family law cases on behalf of military members. We offer free of charge consultations six days a week where we can answer your questions and address your specific circumstances.