Megan Erinakes
With so many people in the military, we are bound to run into military issues in our family law cases. Are there special circumstances when someone is deployed? How are military assets divided upon divorce? This article answers questions like these so we can better assist our military clients.
Possession & Visitation During Deployment
If you know that your client will be or there is a possibility that your client will be deployed, you want to make sure that the custody order includes a provision to provide for custody terms during the deployment. If the order does not have such provisions, either parent can ask for a temporary order to do so. Tex. Fam. Code § 153.702(a). It is important for those who are being deployed to know that Texas law allows for a noncustodial parent to designate a person who will exercise that parent’s visitation while they are deployed. Tex. Fam. Code § 153.704 and § 153.705. And upon return, the noncustodial parent may ask the court for makeup visitation time. Tex. Fam. Code § 153.709(a).
Child Support
When calculating a child support obligation, the court needs to first determine your client’s monthly net resources. The court will take into consideration VA compensation benefits and VA disability benefits. However, the court will not count VA pension benefits as part of your client’s resources. Texas Family Code § 154.062. It is important to note that if VA pension benefits are the only source of income for the obligor, child support can still be calculated at minimum wage. Tex. Fam. Code § 154.068.
In order to pay child support, most parties opt to have their wages garnished. However, garnishment of wages is prohibited for VA compensation benefits and VA pension benefits with limited exceptions. 38 USC 5301. However, even if your client’s income is exempt from garnishment, your client still must pay child support. Your client should make the payments through the State Disbursement Unit and not directly to the other parent or it might not count.
If your client has a military-related injury, the Texas Office of the Attorney general has a HEROES program that helps veterans who are unable to follow court orders due to the injury. There is a specialized case review system to determine obligations. To learn more, you can contact (512) 460-6400 or email HEROES@oag.texas.gov.
Family Law Cases While on Active Duty
If a servicemember is on active duty, they must be personally served with any court papers. No other type of service will be accepted. This could affect the timeline of a court case if the servicemember is overseas.
In addition, an active duty servicemember will have an additional 90 days to respond to the suit. 50 U.S.C. § 3931(d). They can even ask the court to delay any hearings until after they return from deployment. 50 U.S.C. § 3932.
Divorce & the Division of Military Benefits
The biggest differences between a normal divorce and a military divorce are the way that military retirement benefits and health insurance benefits are allocated.
The Uniform Services Former Spouses Protection Act (USFSPA) is a federal statute which governs how military retired pay is treated in divorce. 10 U.S.C. § 1408(a)(4)(B)(i). The benefits are “frozen” the date the marriage is dissolved. The spouse’s portion is based on the servicemember’s rank and time in service during the marriage. Berry v. Berry, 647 S.W.2d 945, 947 (Tex. 1983).
A common misconception is that the marriage needed to last 10 years. This is not true. A share of the military retired pay can be awarded to a spouse even if the marriage lasted less than a year. The 10-year rule comes into play regarding direct payments. If you were married for at least 10 years, the Department of Defense can make direct payments of the military retired pay to the former spouse. 10 U.S.C. § 1408(d).
Military disability pay is not considered community or marital property and thus not subject to division upon divorce. However, it can be subject to garnishment to pay child support or even spousal support. Tex. Fam. Code § 154.062.
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Megan Erinakes is an attorney and founder of Erinakes Law. She can be reached at megan@erinakeslaw.com.
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Articles on the DAYL website are provided for informational use only, and are in no way intended to constitute legal advice or the opinions or views of the DAYL.