Q and A regarding a military divorce

Even though you and/or your spouse are in the military that does not mean that you will be divorced by a military court. Rather, if you are a resident of the state of Texas then you will be divorced in a civil court based on the laws contained in the Texas Family Code. Therefore, one of the first things you need to know about a divorce case is that you need to file your case in a family court in the county where you are a resident. Even though your divorce is a civil matter there are going to be differences between your case and a civilian divorce.

Due to the somewhat more complex nature of a military divorce, the attorneys at the Law Office of Bryan Fagan wanted to provide you with the answers to some of our most frequently asked questions regarding divorce. Whether you have questions about dividing community property, debt allocation, child custody, child support, or retirement benefits please allow this blog post to serve as a guide for you as you begin to learn more about the process of divorcing in Texas. If you have any questions about what you read here, please do not hesitate to contact our office today for a free of charge consultation.

What is jurisdiction in a military divorce?

When you want to get a divorce and either you, your spouse or both of you are military service members you need to determine which state and which court has proper jurisdiction over your case. Jurisdiction means that the court would have the authority to not only grant your divorce but also handle other issues that are a part of your case. While certain components of your military retirement and other benefits are handled under federal statute your divorce cannot be granted by a federal court. Therefore, you need to determine whether a Texas family court has jurisdiction over your case.

This can sometimes get complicated in a situation where you live in one state and your spouse lives in another while taking care of the children. In Texas, a family court has jurisdiction over your case if you or your spouse has resided in Texas for the past six months and in the county where you are filing your divorce for at least the prior 90 days. You may not have to be physically residing in Texas at the time you file for divorce in Texas, either. On specific issues regarding residency and jurisdiction please reach out to one of the experienced family law attorneys with the Law Office of Bryan Fagan. We can guide you on your specific situation so that we can help determine whether the Texas court has jurisdiction over your case.

In general, there are usually three places where you or your spouse can file a divorce and have jurisdiction. Those places would be where you reside, where your spouse resides, or where your children reside if they do not reside with either you or your spouse. This is one of the main areas where a military divorce can differ from civilian divorce in terms of complexity and the issues that need to be thought about period since military families like yours tend to move quite a bit you need to have a good grasp of these subjects so that you can move confidently forward whenever you believe it is time for you to file for divorce.

One of the main reasons why this can be such a confusing subject is that different phrases are utilized regarding where you and your family live. For instance, we have already discussed the term residence as being where you are physically residing. This is the state where you are currently. On the other hand, your domicile is where your roots may be and will be considered your permanent residence. On military paperwork, he may have the phrase “home of record” listed which is usually the state where you lived when you first joined the military.

When it comes to getting a divorce in Texas, the state wants to know where you are a resident. Or, the state needs to know if you are not a resident of Texas if your spouse or children are residents of Texas. Where you are domiciled or where your home of record is does not matter to a Texas family court. Even if you are deployed outside of the United States a Texas family law court could allow you to file for divorce here in Texas if the Lone Star State is your place of residence. You would not want to try to file for divorce in the foreign country where you are currently residing, however.

How is jurisdiction over child custody issues decided?

If you and your spouse live in different states and have a child custody matter to bring forward to the court, that means that the Uniform Child Custody Jurisdiction and Enforcement Act would come into play. Under this Act, jurisdiction over your children would be in the state where your children have legally resided and have physically been living for the past six months. While you and your spouse can agree to another state having jurisdiction over your case it does not work that way with jurisdiction for your children. The reason for this is that a family court cannot oversee a court case regarding children who do not reside in that state. For example, if you are going through a divorce and have minor children involved and those children do not reside in Texas then a Texas court will not be able to have jurisdiction over your divorce.

How is jurisdiction over military pensions and property issues determined?

When it comes to dividing up your community property in a divorce it is important to understand that a court from another country cannot divide up you are a military pension. Rather, only an American court has jurisdiction to divide property like a military pension. Additionally, if you plan to assert that Texas has jurisdiction over your divorce then it would need to be found that you are not a resident of Texas only because of your military responsibilities. Rather, you would need to be from Texas or have some significant ties to the state for Texas to have jurisdiction.

If you are a retired service member, then your residence will either be the last place where you lived before going overseas or the State where you lived while on active duty. If you lived in Texas for a minimum of six months after you have retired, then Texas is usually going to be the state of residence for your divorce. With so many veterans living in Southeast Texas the Law Office of Bryan Fagan is honored to be able to serve our veterans in a variety of legal capacities. It doesn’t matter what your background is or what your issues are. Our office is here to serve you.

What is the Service Member’s Civil Relief Act?

The Service Member’s Civil Relief Act is a federal law that protects you as a member of the United States military. When you are serving our country as a military service member the last thing that the country needs is for you to be distracted by ongoing civil litigation. The Service Member’s Civil Relief Act is a way for members of the military to be able to conduct their duties without fear of having civil litigation ongoing in their absence.

What the Service Member’s Civil Relief Act does is allow you to get an automatic 90-day stay or postponement of court proceedings if your service in the military affects your ability to proceed in a divorce or any other family law case. Depending upon the circumstances of your case that 90-day stay can be extended even longer. If you are deployed overseas, then this act will prevent your spouse from pursuing divorce and child custody cases against you without your knowledge.

Here is how the Service Members Civil Relief Act can protect you if you are not able to file an answer to your spouse’s divorce petition or appear in court for a hearing. The risk of you not answering a divorce petition is that you could be found in default and a judgment can be issued against you as a result. This could easily happen in a situation where you are far away from home and working as a part of your military service. In this case, a stay would likely be issued by a Texas family court judge which could last for the duration of your deployment plus an additional 60 days.

Keep in mind, however, that this stay does not mean that you have no obligation to show up for a trial. What it means is that the family court can delay a trial if your military service is going to have a large impact on your ability to properly defend yourself in court. Another thing for you to be aware of is that a judge has the right to deny any delay of the proceedings if it is determined that your military service will not have any impact on your ability to defend yourself in a case.

How are property and military pension matters handled in a divorce?

Texas is a community property state. The general presumption is that all property and debt acquired during the marriage will be divided in a somewhat equal fashion between spouses. Of course, there are almost always factors that could cause this to not be the case and you and your spouse can negotiate your way through a property settlement which may end up looking completely different than had a judge decided on these matters, instead.

What does this mean for you as a military service member? For one, it means that the earnings that you have made because of your military service are going to be considered as community property. It doesn’t matter if you were the one earning the income or if your spouse has never worked outside the home a day in her life. In Texas, that income is treated as being earned just as much by her as it is by you. When it comes to things like military pensions, health insurance, college savings through the military, and the ability to utilize privileges on base these are subjects that are not seen in civilian divorces.

When it comes to your thrift savings plan or pension that you contributed to throughout your marriage then that portion of the retirement savings you have accumulated is community property in Texas. Again, under many situations, the community property portion of your pension would be divided in equal fashion between you and your spouse. Whether it is a thrift savings plan or a military pension the court will still treat any contributions made during your marriage as community property.

This all works out to your community property share in the pension being the duration of time that you were both married and serving in the military. If you were married before you enrolled into the military then your community property share begins when you first enlist. On the other hand, if you were in the service before your marriage then your community property share begins the day that you became married. Community property as it pertains to these retirement benefits stops being calculated when either you leave the military or become divorced.

Let us consider a hypothetical situation involving you and your spouse to illustrate a point that comes up frequently in the world of military divorces. Suppose that you got married 15 years after you began serving in the military. After 20 years of military service, you retired. The same period where you retired from the military you also filed for divorce. This means that you would have only been married for five years. The community property share of your pension would be 25% because you were married for five of your 20 years of military service. A family court judge would determine a just and right division of that community property share of the pension.

What is the 10-year rule?

The Defense Finance and Accounting Service is who pays out your pension. The Service may divide your pension up between you and your ex-spouse only if certain things are true. If these things are not true for your marriage, then the Service will not be responsible for dividing up your pension and you will need to divide any amounts available to you between you and your ex-spouse at some point in the future.

However, if you have been married and in the military for at least 10 years then you can submit a form to the Service and they will send a check to your ex-spouse each month for their share of their retirement. You would not have to do anything additional. If this 10-year rule does not apply to you then you would be the one responsible for sending in that check to your spouse every month.

How do benefits factor into a military divorce?

One of the reasons why many people choose to begin a career in the military is for the benefits that are provided to military service members and their families. If you are divorcing a military service member, then you have the potential to be able to maintain some of these benefits under certain scenarios. For instance, there are circumstances in which health insurance benefits can be extended to you even after you get divorced. For you to be able to qualify for military health insurance you must have been married to your spouse for at least 20 years. Additionally, there must have been 20 years of service by your spouse in the military. Finally, there has to be at least a 20-year overlap of the marriage and military service. If those conditions are met then you may be able to stay on your spouse’s health insurance even after your divorce comes to an end.

What about the benefits under the GI Bill?

The United States government offers educational benefits for service members who have served in an active-duty capacity for at least 90 days and have been honorably discharged. If you were discharged from the military after January 1st, 2013, then there is no time limit for you to use those funds to pay for school. You as a service member can transfer your benefits under this bill to your spouse immediately but would need to serve for at least ten years to transfer the benefit to your children.

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