Law enforcement officers and their spouses who go through a divorce tend to have different experiences than most of the public. Not only are divorces very unique matters for each family that goes through the process, but law enforcement officers have specific circumstances that impact their lives more acutely than others. One of the most unique ways that a divorce for law enforcement officers impacts their lives is regarding child custody. Raising a child as a law enforcement officer or law enforcement officer spouse is difficult enough as it is. The process of divorcing while being in a law enforcement family is about as difficult as it gets.
Additionally, the pension rules associated with divorcing a police officer also need to be mentioned. As a law enforcement officer, you took an oath to serve your community. That service does not come at zero cost to you. You put your life on the line each day in performing the daily activities that are a part of your job. Serving the community in a law enforcement capacity also impacts your family law. Having a job with an atypical schedule means that you may not be able to see your kids as often as you would like. It could be that your marriage has suffered as a result of your career path.
When it comes to being a law enforcement officer one of the major perks of the job is that you can earn and build a pension throughout your working life. Your pension is something that is contributed automatically and may be impacted by years of service, your base rate of pay, and other factors that are related to your specific role as a law enforcement officer. If you have specific questions about your pension, then you should reach out to your human resources department at work to ask questions. This is the best resource for you to collect information and develop a plan for your retirement. I would recommend doing this regardless of what happens in your divorce.
Pension division for law enforcement officers and their spouses
If you are an officer, then you are likely heading into your divorce wanting to protect your pension as much as possible. On the other hand, if you are an officer’s spouse then you may be concerned about your ability to retire. Either way, the pension is an important part of a divorce for those families who are in law enforcement. Here is some important information for you to consider as you begin the divorce process.
Texas, as you may know, is a community property state. This means that the property that you own at the time of your marriage is presumed to be marital property and thus divisible by a family court judge. This is a big difference between how Texas treats property and how other states treat marital property. In most other states the spouse who purchases the property earns more income, or otherwise contributes more financially to the marriage and can retain more of the property.
Not so much in Texas. Texas presumes that not only is all property owned between you and your spouse to be a community in nature but that it doesn’t matter who contributed more economically when it comes to the two of you. Your spouse could have been a stay-at-home spouse or parent and never have worked a day in their life and now be on the same footing as you financially. Let that sink in for a moment or two.
But wait. Before you kick the bedpost in frustration why not look at this situation from the perspective of your spouse. Even if he or she never worked a day in your marriage outside of the home it’s not that their economic contribution was zero. Cooking, cleaning, childcare, transportation, appointment setting, home maintenance, etc. If not for your spouse, you may have had to pay people to perform these services for you. Paying people costs money if you weren’t aware. Therefore, I have it on pretty good authority that you would not be in a much better position than you are not but for this community property assumption.
When we talk about community property, we do not just mean the tangible property that you see around your house. Your vehicles, the house itself, your silverware, and the video game system in the game room. These are types of property, to be sure. However, when we talk about property in the context of a Texas divorce case, we are also discussing intangible property. Savings accounts, checking accounts, and retirement accounts are just a few of the intangible assets that are counted as community property. Your pension is a type of community property if you accumulated and contributed to the account during the length of your marriage.
The default setting for a family court judge would be to split your community property right down the middle. However, let’s examine some important caveats to this assumption. First, there are almost always external factors that weigh on a judge when determining how community property would be divided. One of the great things about working with an experienced family law attorney is that we can help you identify those factors and plan for them- whether they work in your favor or not. Contact the Law Office of Bryan Fagan today to learn more about the services that we can provide to you as a client of ours.
First, the judge would consider fault on your part or that of your spouse when it came to the breakup of your marriage. In Texas, as in every other state, you can obtain a divorce for no reason. Discord or conflict in personalities, irreconcilable differences, and incompatibility are just a few of the euphemisms we give to people who simply no longer want to be married. This is otherwise known as a “no-fault” divorce. You and your spouse are not placing any blame on the other when it came to your divorce. You simply no longer could tolerate being married and are getting a divorce.
On the other hand, Texas allows for you, your spouse, or both of you to assert fault grounds when it comes to a divorce. These fault grounds include things like adultery, abandonment, and cruel treatment. Not only would you need to allege one of these fault grounds, but you would need to provide specific evidence to a family court judge to substantiate the allegation. If you can do so then you can reap some benefits from having done so.
What sort of benefit, you may be asking? When it comes to your property division being able to prove that your spouse contributed enough to substantiate a fault ground for divorce means that you could be in line to receive a disproportionate share of your community estate when the case is all said and done. Disproportionate means more than half. Since you were an “innocent” spouse you would be rewarded for your innocence, to put it another way. This is an important point to make and can make the property division aspect of your case much different than simply saying that a judge would split your property right down the middle.
The amount of community property in play can also impact issues like who gets to keep the house after the divorce and whether spousal maintenance will be ordered. Keep in mind also that you and your spouse are likely to be the people who determine how your community property is divided and not a judge. Therefore, the two of you can begin to throw out settlement offers from the beginning of your divorce to work through these types of issues. No use waiting until your case is over with to leave it all up to a judge. Work through these issues as best you can and only rely upon the judge if it becomes clear that this is your only option.
Community property and your pension
The idea that all property earned during your marriage will be classified as community property and thus divided evenly sounds nice on paper but doesn’t exactly come out that way in the real world. Rather, we have already seen that external factors can play a role in this process. In addition to concepts like fault grounds for divorce, there are other issues in play when it comes to how your property will be divided in a divorce.
Let’s consider the subject of commingling. When you and your spouse mix community property with the separate property you have commingled property. For example, if you deposit money earned during your marriage into a savings account that you had before you married then you have a potential situation for commingling of property. The money that you earned and deposited into the account before your marriage would be separate property and is not divisible.
The tricky part for you, your spouse, and potentially a family court judge is determining which portion of the account is separate property and which portion is community property. When you have mixed money up in an account it can be tricky to go back and decide on which is separate, and which is community. It may be that you can simply go back and look through your account to look at when you got married and how much money was in the account on that date. This would be separate property. Any money deposited after that date would be a community. You may have to consider interest rates on the account and the growth inside the account, as well.
However, this assumes that you can log into your online account and look back many years to determine all this. What if you are in a situation where online records aren’t as easily located? What if you don’t do online banking and instead rely upon the statements mailed to you by the bank? I know this sounds far-fetched to some of you, but many people still bank this way. What then? How could you ever feel confident about making this sort of determination? In that case, you would likely need to hire a forensic accountant to make the call for you.
This same general principle could also apply to your pension. It may be the case that you were working as a law enforcement officer before you got married. In that case, you would need to figure out how much of your pension is separate property and how much of it is community property. There is a ratio that is applied to your pension based on the total number of years that the two of you were married and the number of years that you earned a pension.
Here is an illustration of that ratio using round numbers. Suppose that you and your wife were married for 10 years and you earned your pension for the past 15. That means that 10/15 or 66.6666% percent of your pension is community property. That percentage would then be applied to the dollar value of your pension and monthly payment would then need to be calculated. Pensions do not act like 401(K)s or IRAs. Rather, pensions do not allow you to pick the funds that they are invested in. You contribute to your pension and a plan administrator or fund manager chooses the investments. When you become vested in your pension after serving your law enforcement body for a certain period then you would be able to receive a specific sum of money each month at retirement. Typically, as you get older and more experienced within the law enforcement body you would be able to take home more money per month at retirement.
How can you keep as much of your pension as possible in a divorce?
When it comes to a divorce case you are playing defense if you are the spouse who has the pension. All that money is technically in your name. However, the law in Texas can divide up that property even if the account doesn’t mention your spouse’s name. The same can be said for your house, vehicles, or anything else you own for that matter. If you are trying to quickly switch the names of various documents into your own so that you can keep the property after a divorce, then you can put that dream to rest. It won’t matter, and the court won’t like that you did it (and neither will your spouse).
As we mentioned earlier, you and your spouse will have ample opportunity to divide up your pension and all community property in mediation or other informal settlement negotiations. Here is some food for thought when it comes to negotiating on this subject. This is general information and should not be taken to apply specifically to your divorce. The best way for you to obtain specific advice about your case is to work with an attorney with the Law Office of Bryan Fagan. In that case, you can be sure that one of our lawyers is doing the work necessary to give you specific advice based on you and your interests.
If you and your spouse both have retirement accounts, then you may agree for both of you to simply keep what you have in your name and move along your ways. This works well if those retirement accounts are equal in value or close to it. If you have a pension and your spouse has a 401(K) then you probably will need to do some planning as far as comparing the two types of retirement vehicles. It’s a bit like comparing apples to oranges.
Next, you and your spouse could make a trade offer. Suppose that, for whatever reason, your spouse wants a portion of your pension. You may be willing to trade that portion of your pension (over and above the community property share) for another asset. Maybe you own a small vacation cottage on Lake Conroe that you want to keep for recreation/fun? If that cottage’s value is equal to the portion of the pension in question, then that may be a deal that you want to pursue.
Finally, you could offer your spouse a spousal beneficiary election on your pension in exchange for a higher percentage of the account. This would work out for your spouse if, sadly, you were to pass away. Rather than name one of your kids or a future spouse as the beneficiary then your ex-spouse would get the pension. This sounds like a risky move, depending on your circumstances. However, if you have nobody else in your life you would like to insert as a beneficiary after the divorce it may work out and make some sense.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about law enforcement divorce situations but also about how your family may be impacted by the filing of a divorce or child custody case.