Specific advice for military pension division

The entire premise of yesterday’s blog post from the attorneys with the Law Office of Bryan Fagan was that we wanted to provide you with advice and perspective regarding military divorces that was actually specific. We know that there is only so much specificity that we can provide you given that we don’t know exactly what you are going through as far as your divorce is concerned. However, rather than just recite what the Texas Family Code says about military divorces our blog post was an attempt to go to the next level as far as providing information that you can actually apply to your day to day life.

Today’s blog post will seek to do much of the same. Specifically, we wanted to get into more about military pensions and how retirement savings can be affected by divorce in Texas. If what we have discussed leaves you with questions that you want answers to, I would recommend that you contact the Law Office of Bryan Fagan in order to set up a free of charge consultation with one of our attorneys.

When does the spouse of a military member get their hands on their part of the pension?

It is all good and well to be awarded property in a divorce, but given that time sometimes causes the value of the property to decrease it is relevant to ask when your spouse would actually be able to get their hands on a portion of your military pension if he or she is awarded that in your divorce. Does your spouse have to wait until you retire from the military or is it possible for your spouse to get access to it at an earlier point in time?

The answer is that your spouse would not be able to gain access to the portion of the pension that he or she was awarded until you retire from your military service. A Qualified Domestic Relations Order will be drafted by your spouse’s attorney and sent to the military to notify them of the court order granting your spouse a portion of your pension. That is the legal mechanism by which the pension can actually be distributed to your spouse. Keep in mind that you and your spouse must have been married for at least ten years and you must have been in the military for ten years in order for your spouse to receive payments directly from the military for the disability pay.

How will your spouse actually be sent the money from your military pension once you retire?

More practical questions that many people going through a divorce do not consider but seriously ought to. The fact is that the pension award in a divorce decree is just nice sounding writing in a divorce decree unless your spouse can actually turn that order into putting money in their pocket. Since we now know that your spouse can only collect on their potion of the military pension when you retire it is useful to find out how your spouse can translate the order into putting money in their pockets.

The military will pay your spouse their portion of the military pension directly under the circumstances that we described above- ten years of service with ten years of marriage- or more. In situations where you and your spouse were not married for ten years or more then you will be asked to fill out a form with the military in order so that they may pay your spouse directly the benefits that have been afforded to him or her in your divorce.

How your attorney should be handling this matter on your behalf

Let’s approach a military divorce from the perspective of your attorney. If you are = a member of our military and anticipate your spouse being awarded retirement benefits in the form of a pension in your divorce then this section is especially for you.

While you should know as much as you can about this subject before you begin your divorce it is crucial that your attorney knows what he or she is doing since it is their responsibility to guide you through the process as well or better than any other family law attorney. With that said, don’t rely on your attorney to your detriment. Here are the steps that your attorney should be taking in order to ensure that your portion of the military pension is received by you in full when your spouse retires from the service.

First, your lawyer should be asking you how long you are or were an active duty member of our military and for how long you were married during that time period. Finally, your attorney should inquire relatively early on in the process whether your spouse has asked to receive a portion of your military pension as a result of getting a divorce. It does happen, believes it or not, that a spouse may not be interested in receiving any portion of your military retirement in the divorce. This does not happen frequently, but from a planning perspective, it can be helpful to know this.

Next, pay close attention to what your attorney is asking you. Remember that he or she is not a veteran (most likely) and does not speak the “language” of the military nearly as well as you do. That’s ok, but he or she should know the basics of what forms and paperwork are necessary to complete the various steps for partitioning some of your pension off for your spouse in the divorce case.

For instance, it is important for you and your attorney to know the average base pay income that you earned in the prior 36 month period as a member of the military. This is going into the equation that we discussed yesterday that will tell you just how much of your pension will be heading to your spouse in the divorce.

Share with your attorney your rank and/or grade of pay at the time you filed for divorce and for how long you have been active duty. These are also parts of the equation that will ultimately determine how much of your pension that your spouse will be able to walk away with. Also relevant will be the knowledge of your average income over the past three years as well as any paperwork showing benefits that have been earned to that point.

What happens if you are a retired member of our military?

If you are no longer actively engaged in military service you should make this known to your attorney early on in their representation of you. The length of your marriage, the length of your service in the military and how much in benefits you are currently being paid is what your attorney will need to know. One nice thing about being retired is that there is no mystery as to how much you will be paid as far as your retirement is concerned. Active duty members have a bit of an unknown to contend with because the government can really only issue estimates as far as what amount of benefits will be paid upon your retiring from the service.

Once you have answered your lawyer’s questions it is their turn to work the numbers for you

Answering the preceding questions from your attorney will allow him or her to use that information to answer a question regarding what may be owed to your spouse as far as your military pension is concerned. For starters, your attorney will need to take the number of months that you were serving in the military while married and will divide that number by the total number of months that you were serving in the military in total.

Whatever number is the result of the above equation is the percentage that will be included in the Qualified Domestic Relations Order that we discussed at the outset of this blog. Obviously the longer the overlap between your military service and your marriage the higher the percentage will be. For those of you who married your high school sweetheart and then immediately enlisted in the military after high school graduation, you will likely be staring a near 100 percent in the face when it comes to figuring out your liability for portioning off your retirement.

The reason that this specific calculation is utilized in Texas is that since Texas is a community property state, we need to see what percentage of your total military retirement pension is vulnerable to being considered community property and therefore subject to division in your divorce. Much of your pension may be separate property (accumulated while you were serving in the military but were not married.) Make sure that your attorney has this information available to him or her long before the Domestic Relations Order is being drafted to avoid mistakes or delays.

Drafting a Domestic Relations Order

This calculation is what will comprise a huge chunk of the domestic relations order that we have been discussing today. Your attorney should be knowledgeable of the terminology used in the Domestic Relations Order so plugging in figures and information should not be all that time consuming for him or her.

The final step in the process is actually getting the Domestic Relations Order signed by the judge in your case. Believe it or not, this can actually prove to be quite difficult if your attorney allows it to be. If your attorney can have the order ready to present to the judge before the final hearing (known as a prove-up hearing) that would be ideal. The reason that it is ideal is that while your judge is signing your final decree of divorce or she can also sign your Domestic Relations Order.

If your attorney fails to get the DRO ready for the final hearing then you may have to remind your lawyer to send it in. The reason that I say that you may have to remind your attorney to send it into the judge is that once you attend that prove up hearing the attorney’s brain may turn off because for most cases that it is the final step in the process. It is not for your case, however, so you may need to remind the lawyer to make sure the files the DRO and then checks with the judge to make sure he has signed it.

What does it mean to hire a family law attorney with experience handling matters related to the military?

There is nothing specific that an attorney must do to say that he or she is a family law attorney. There is nothing specific that a family law attorney must do to say that he or she is a family law attorney with experience handling military divorces. The simple fact is that the only way to hold an attorney accountable for what they tell you is to possess some knowledge of the process and to make sure that the attorney can explain the things to you that you don’t understand or yet know.

My advice would be to always look for an attorney with the heart of a teacher. Your attorney should not spend their entire consultation with you discussing money and fees. It should be spent with you talking more than the lawyer. If your lawyer can listen, analyze and explain the issues to you then you are off to a good start. The issues that we have discussed today are potentially worth millions of your dollars in a divorce. Take your time, consider your options and make a decision only after you have determined what is best for you and your family.

Questions about military divorces? Contact the Law Office of Bryan Fagan

If you have any questions about the material that we have covered today please consider contacting the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with one of our licensed family law attorneys. A consultation involves our lawyer sitting with you in a comfortable, pressure-free environment and answering your questions directly.

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Other Articles you may be interested in:

  1. Military Divorces in Texas
  2. Essential Information for Military Divorces in Texas
  3. Military Support Without a Court Order During a Divorce in Texas
  4. How to Divorce a Spouse in the Military
  5. Texas Divorce – Serving Military Personnel or their Spouse Worldwide
  6. Texas Statute Aids Military Personnel and Their Spouses in Filing for Divorce
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