Practice Areas
Military Divorce in Texas
Military Divorce Requires Experienced Guidance.
Military Divorce Involves More Than a Typical Divorce
Military families face many of the same issues as civilian families, including the division of property, child custody, child support, and spousal maintenance. However, military service adds another layer of complexity. Federal statutes, military regulations, and specialized retirement rules frequently intersect with Texas family law, creating issues that do not arise in most divorces.
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Whether one spouse serves on active duty, in the National Guard, or in the Reserves, a military divorce requires careful attention to both Texas law and the federal laws that govern members of the armed forces.
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At Fergus & Tomanka, we regularly represent military members and civilian spouses in divorce, child custody, and retirement cases involving the United States Armed Forces.
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Can I File for Divorce if My Spouse Is Stationed Somewhere Else?
Yes. Military assignments often result in spouses living in different states or even different countries. Determining where a divorce may be filed depends upon residency requirements under Texas law, as well as the service member’s legal domicile.
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Many military families maintain Texas as their legal residence even while stationed elsewhere. In other cases, one spouse may have established residency in Texas while the other remains stationed outside the state.
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Because jurisdiction can significantly affect the outcome of a divorce, it is important to consult an attorney before filing.
Serving Divorce Papers on a Service Member
Serving legal papers on an active-duty service member is often more complicated than serving a civilian.
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If the service member is stationed within the United States, service may be accomplished through traditional methods authorized by the Texas Rules of Civil Procedure. Depending upon the circumstances, service may occur at the member’s residence, workplace, or other authorized location.
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When a service member is stationed overseas, service may require compliance with international agreements, military regulations, or other specialized procedures. Additional time is often necessary to complete service outside the United States.
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Likewise, service on a military installation may involve additional security procedures. Civilian process servers generally cannot simply enter a military base without authorization. Depending upon the installation and the branch of service, coordination with the installation commander, Judge Advocate General (JAG) office, provost marshal, or base security personnel may be necessary before service can be completed.
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Because improper service can delay the entire case, military divorces often require additional planning at the beginning of the lawsuit.
The Servicemembers Civil Relief Act May Delay Court Proceedings
Active-duty military service can affect a service member’s ability to participate in court proceedings.
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The Servicemembers Civil Relief Act (SCRA) is a federal law designed to protect military members whose duties materially affect their ability to appear in court. Under appropriate circumstances, the SCRA allows a service member to request a stay of civil proceedings while on active duty.
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The Act is intended to prevent default judgments and ensure that military members are not forced to choose between defending a lawsuit and fulfilling their military obligations.
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The SCRA does not prevent a divorce from occurring, nor does it automatically stop every family law proceeding. Whether a stay should be granted depends upon the particular facts of the case and the service member’s ability to participate despite military duties.
Military Retirement is Often One of the Largest Assets
Military retired pay is frequently one of the most valuable assets accumulated during a marriage.
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Texas courts may divide the community property portion of disposable military retired pay as part of a just and right division of the marital estate. The portion earned before marriage generally remains the service member’s separate property, while the portion earned during the marriage is generally community property.
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Military retirement is a defined benefit pension and should not be confused with a Thrift Savings Plan (TSP), which is a separate defined contribution retirement account.
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Because military retirement involves federal law, the division of retired pay frequently requires specialized language in the Final Decree of Divorce and additional documentation submitted to the Defense Finance and Accounting Service (DFAS).
The "10-Year-Rule" Is Frequently Misunderstood
One of the most common misconceptions in military divorce is that a spouse must be married to the service member for at least ten years to receive any portion of the military retirement.
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That is not what the law provides.
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A former spouse may have a community property interest in military retired pay even if the marriage lasted less than ten years. Texas community property law—not the length of the marriage—determines whether the former spouse owns part of the retirement earned during the marriage.
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The 10/10 Rule affects only how payments are made, not whether the former spouse has a property interest.
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If the parties were married for at least ten years during which the service member performed at least ten years of creditable military service, DFAS may make direct payments to the former spouse if all statutory requirements are satisfied.
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If the marriage does not satisfy the 10/10 Rule, the former spouse may still be awarded the same ownership interest in the retirement. The difference is that the service member, rather than DFAS, generally remains responsible for making those payments.
DFAS Can Enforce Certain Court Orders
The Defense Finance and Accounting Service (DFAS) administers military retired pay and implements qualifying court orders involving military retirement.
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When the statutory requirements are satisfied, DFAS may send the former spouse’s awarded share of military retired pay directly to the former spouse rather than routing the payment through the retired service member.
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DFAS may also honor qualifying income withholding orders and garnishment orders for child support and, in appropriate cases, spousal support. Federal law imposes detailed requirements regarding the form and content of these orders, making careful drafting essential.
Child Support Can Be More Complicated for Military Families
Calculating child support for military personnel often requires more than simply reviewing a Leave and Earnings Statement (LES).
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Texas child support is based upon an obligor’s net resources. Military compensation frequently includes forms of pay that receive favorable federal tax treatment, including Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), Cost of Living Allowances (COLA), special duty pay, incentive pay, flight pay, sea pay, hazardous duty pay, and other military compensation.
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Although some of these allowances are not subject to federal income taxation, they may nevertheless constitute income or net resources for purposes of calculating child support under the Texas Family Code. Consequently, a military member’s child support obligation may differ significantly from what would be expected by reviewing taxable wages alone.
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Accurately calculating child support often requires a careful analysis of the service member’s LES together with applicable military compensation regulations.
Deployment Does Not Automatically Change Child Custody
Military deployments frequently require parents to make temporary adjustments to possession schedules. Texas law recognizes that military service should not unfairly disadvantage a parent simply because military duties require temporary absences.
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When a parent deploys, courts often enter temporary orders addressing possession during the deployment, communication with the child, transportation, and possession following the parent’s return.
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Importantly, Texas law generally prohibits a court from permanently changing the parent who has the exclusive right to designate the child’s primary residence solely because the parent has been deployed, mobilized, or temporarily assigned to military service. Military service, standing alone, should not become the basis for permanently altering conservatorship.
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Instead, courts focus on preserving stability for the child while also protecting the service member’s parental rights whenever reasonably possible.
Parenting Plans Should Anticipate Military Service
Military life is inherently unpredictable. Permanent changes of station (PCS), temporary duty assignments (TDY), overseas deployments, training exercises, and changes in duty stations can all affect parenting schedules.
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A well-drafted parenting plan anticipates these possibilities. Depending upon the family’s circumstances, the decree may address advance notice requirements, virtual visitation during deployments, transportation responsibilities, holiday possession after deployment, exchange procedures, and methods for resolving scheduling conflicts created by military orders.
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Planning for these contingencies during the divorce often reduces future conflict and provides greater certainty for both parents and children.
Military Benefits Require Careful Analysis
Military families often possess retirement and employment benefits that do not exist in civilian employment. Depending upon the facts of the case, issues may include military retired pay, the Survivor Benefit Plan (SBP), Thrift Savings Plans (TSPs), disability compensation, continuation of health care benefits, commissary and exchange privileges, and other federal benefits.
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Each of these benefits is governed by different statutes and regulations. Some may be divisible in divorce, while others may not.
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Because the rules vary considerably depending upon the benefit involved, military divorces require careful analysis before any settlement agreement is reached.
Fergus & Tomanka Understands Military Divorce
Military divorce requires an understanding of both Texas family law and the federal laws governing members of the armed forces. Jurisdiction, service of process, the Servicemembers Civil Relief Act, military retirement, DFAS procedures, child support calculations, deployments, and military parenting issues all require specialized legal analysis.
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At Fergus & Tomanka, we represent service members and civilian spouses throughout Central Texas in military divorce and custody cases. We regularly assist clients with the division of military retirement benefits, Thrift Savings Plans, child support, parenting plans, DFAS orders, and other issues unique to military families. If you are facing a military divorce, we can help you understand your rights and develop a strategy tailored to your family’s circumstances.
Call (512) 291-6952 to setup a consultation with one of our attorneys OR simply Make An Appointment on your own!
These issues can be quite difficult to handle on your own due to the legal complexity and emotionally-charged nature of the proceedings. It’s best to consult with an experienced family law attorney in your area.