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How disability issues are handled during a military divorce in Texas

Military servicemembers in some circumstances sustain injuries while in the line of duty. If you were unfortunate enough to sustain an injury that ended your military career and caused you to receive disability benefits through the Veterans Administration, you don’t need me to tell you that it is a hassle and a half to get to the point where benefits are paid to you. The attorneys with the Law Office of Bryan Fagan, PLLC believe that we as your neighbors and as fellow Americans are forever indebted to you and your family for the sacrifices you have enduring while defending our country and our freedoms at home and abroad.

When it comes to those disability payments they are unfortunately received in most cases by reducing the amount of retirement benefits you would stand to receive later in your life. It is possible that your disability payments are going to be divided in your divorce in Texas. Today’s blog post from the Law Office of Bryan Fagan, PLLC will discuss that topic in greater detail.

Military Retirement benefits in a divorce

A federal law known as the Uniformed Services Former Spouses Protection Act (USFSPA) allows divorce courts in Texas to divide up your military retirement pay between you and your spouse as a part of divorce proceedings. When you and your spouse finally do get divorced the terms of this division will be detailed in your Final Decree of Divorce. You would not start to receive these retirement benefits until you actually retire but your spouse can be awarded a percentage of your retirement benefits before you retire. However, your spouse would stand to receive the money from your retirement benefits only after you actually do retire.

Veterans Administration Benefits in a divorce

The disability benefits that you earn as a result of being injured while in the military are typically not divisible by a divorce court. This can have a significant impact on your spouse’s future benefit from these retirement funds.

Let’s consider an example before we press on with today’s blog post. Take, for instance, a scenario where your retirement benefits pay you $3,000 per month and your divorce decree allows you to receive half of this. In most cases she would be receiving $1,500 a month in retirement benefits. Keep in mind, however, that if you waive a specific portion of your retirement benefits and accept that same amount as a monthly disability benefit then your retirement pay would go down and you would stand to pay less to your spouse in a divorce.

In the above scenario you would be able to keep more money that you receive as a function of your military service. Disability benefits are tax free and your retirement benefits are not, keep in mind, so it would make sense on multiple levels to receive your money as disability rather than as retirement benefits.

What affect does all of this have on child support and/or alimony?

Veterans Administration benefits are fair game when it comes to consideration of what you can and should be paying in monthly child support and alimony bills. This is true even if those benefits awarded for injuries sustained while in the military are your only source of income. The reason for this is a Supreme Court (United States, not Texas) made a determine in a prior decision that this source of income is intended a supplement to a person’s income rather than the sole source of that income. In the event that your divorce goes to a trial and the judge awards child support or alimony payments to your spouse and you subsequently fail to pay the amounts as ordered you can be found in contempt of court for violating the judge’s orders. Punishment for doing so can be fines and/or jail time of up to six months. Unlike in the example in the prior section of this blog, disability benefits through the Veterans Administration can be garnished in order to pay back child support and/or alimony.

What sort of benefits can a spouse get from the military if married for less than ten years?

If you are in a relatively young marriage (less than ten years married) and are considering a divorce from your military spouse, you likely have some questions about what sort of benefits are you entitled to (if any) as a result of being married to a person who is serving in the military. You’ve become accustomed to receiving benefits from the military- health insurance, disability pay, retirement pay, etc.- and now want to know what you can do, if any, to ensure your continued ability to receive those benefits.

The USFSPA covers scenarios like this where you as a non military spouse are able to maintain those benefits to which you have become accustomed to receive as a result of your marriage. In general, however, if you and your spouse have not been married for at least twenty years then you will likely not have any claim to your spouse’s retirement benefits.

What the laws in the USFSPA state in regard to this matter are very specific when it comes to non military spouses and their ability to receive and maintain military benefits even after divorce. Most of the time you as the non military spouse are not eligible to receive benefits after your divorce if your marriage is relatively new. Family services, grocery stores, housing and health insurance are all part of the package of benefits that military members and their families receive. These are typically lost in a divorce for the spouse unless your marriage has been in place for longer than twenty years. An exception to this rule is if you have children. Children are treated as dependents of the military member and would still be eligible for these benefits.

Could retirement benefits might still be in play for a non-military spouse at divorce?

Young marriages do not allow for the maintenance of many of the benefits that come along with being married to a person in the military, as we have just seen. However, there are some scenarios where retirement pay may still be available in limited circumstances. Up to half of your spouse’s retirement pay can be awarded to you in a divorce under the USFSPA. Retirement benefits can be divided up in your property division of your divorce decree or can be substituted in full or in part as alimony/child support.

How does a non-military ex-spouse get paid benefits after the divorce is finalized?

The government agency that handles the payment of military benefits can sent retirement pay directly to you as a non-military ex-spouse. For this to occur, however, you and your spouse must have been married for at least ten years and the years that your spouse was in the military must also be at least ten. A family law court in Texas must order that this direct payment of benefits occur. Child support is handled differently and can be paid directly to you no matter how long your marriage lasted

Military benefits are important and complicated

The bottom line is that there are many rules and regulations when it comes to military benefits-retirement or disability. It is hard enough to keep track of them all and even more difficult to apply them to your circumstances without missing something. It’s for this reason why hiring a family law attorney with a great deal of experience handling divorces for military members and their families is highly recommended.

Questions about divorce as a member or the military or as a non-military spouse? Contact the Law Office of Bryan Fagan, PLLC

If you are interested in learning more about divorce in a military family you should contact the Law Office of Bryan Fagan, PLLC today. We offer free of charge consultations six days a week with one of our licensed family law attorneys. We take great pride in serving the members of our community who have served our country. From Baytown to Katy, up to The Woodlands and down to Galveston there is no group of attorneys better equipped to represent you in your family law matter than the attorneys with the Law Office of Bryan Fagan, PLLC.

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