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Award of Retirement Increases in Texas Divorce

Award of Retirement Increases in Texas Divorce

Originally published by Kelly McClure.

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Retirement can be a complex issue in Texas divorce cases.  In some cases, retirement accounts may not be fully vested.  In others, retirement income may be subject to periodic increases.  When retirement income is subject to increases, the spouse required to make ongoing payments should be sure he or she understands how to calculate those payments in light of the increases.

A former couple recently ended up back in court more than a decade after their divorce due to a dispute over how to calculate retirement increases.  The couple married in 1976 and divorced in 1998, after the husband’s retirement from the military.  The wife was awarded $754.80 per month of the husband’s retirement, and 60% of all increases “due to cost of living or other reasons…”  The husband was ordered to name the wife beneficiary under the Armed Services Survivor Benefit Plan (SBP).  The wife was ordered to pay 40% of the cost of the SBP, which was to offset the retirement award the wife received.

In 2012, the wife informed the husband he had underpaid her.  His new attorney told him he had been calculating his payments incorrectly. He had been calculating the payment using a method that resulted in payment of 60% of all cost of living increases cumulatively.  After receiving advice from counsel, he began paying his wife 60% of the increases only in the first year they were received.

The wife petitioned to enforce the retirement award, claiming she had been underpaid.  The husband argued he had overpaid her and that she had not paid the SBP premiums.  At trial, the wife testified she was owed more than $7,000 and that she had paid the SBP premiums according to the prior ruling.  The husband did not provide evidence of the overpayment amounts or the SBP premiums he claimed were owed to him.

The court found that the wife was entitled to $754.80 per month as her share of the husband’s retirement, and 60% of any cost of living increase in the year it was first received.  The court awarded the husband $2,617.57, but did not state how it calculated that amount or how it was allocated between the overpayments and SBP premium underpayments.

On appeal, the wife argued the original decree required the husband to pay 60% of any increases cumulatively.  She also argued the evidence was insufficient to support the trial court’s finding she had not paid the SBP premiums as required.  The husband argued the trial court had correctly interpreted the original award.

The appeals court considered whether the trial court had sufficient evidence to exercise its discretion and whether the court erred in application of that discretion. Evidence is insufficient if there is a complete absence of evidence regarding a vital fact, the rules of evidence do not allow the court to give weight to the only evidence supporting a vital fact, there is a “mere scintilla” of evidence supporting a vital fact, or the evidence establishes the opposite of the vital fact conclusively. The court errs in the application of its discretion if it makes an arbitrary or unreasonable decision.

The appeals court had previously decided a case with similar language regarding increases in retirement income.  In that case, the appeals court held the wife was entitled to the fixed amount plus the percentage of the accumulated cost of living increases.  The appeals court referred to the husband’s argument that she only receive the percentage during the first year as “a tortured reading of the divorce decree.”  The appeals court noted that the wife’s share is based on the accumulated increase because the husband receives base retirement pay plus the accumulated adjustments.

The trial court abused its discretion in finding the wife was only entitled to the increases during the first year. The appeals court further found that the order improperly amended, modified, altered, or changed the substantive division of property in the divorce decree.

In its opinion, the appeals court rendered judgment clarifying the divorce decree to provide that the wife is entitled to “60 percent of all accumulated increases…”  The appeals court found the husband was entitled to nothing on his claim for overpayment of the retirement award.  It remanded the wife’s claim to the trial court for proceedings to determine the amount of the underpayments.

The appeals court then considered the SBP premium claim.  To succeed on his claim to enforce the premium obligation, the husband had to prove his wife failed to comply with the obligation and prove the underpayment amount.  The evidence presented on this issue indicated the wife deducted her premium obligation from the amount the husband owed her and paid him $138.43 each month since 2013.  There was no evidence in the record of missing premium payments.

The appeals court found “a complete absence of evidence” supporting the husband’s claim.  The trial court abused its discretion by finding the wife had not met her obligation when the evidence was legally insufficient to support such a finding.  The appeals court reversed the judgment awarding the husband on his claim for premium payments and rendered a judgment that he receive nothing for that claim.

This case clarifies that an award of increases in retirement income will likely be interpreted to require that the increase in payment to the spouse be ongoing and not limited to the first year unless there is language otherwise.  If you have a dispute with your former spouse over property division, an experienced Texas divorce attorney can help you understand your obligations and fight for your rights.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Joe Cordell Receives Missouri Lawyers Weekly ICON Award

Joe Cordell Receives Missouri Lawyers Weekly ICON Award

Joe Cordell Receives Missouri Lawyers Weekly ICON Award 1

Cordell & Cordell Co-Founder and Principal Partner and DadsDivorce sponsor Joseph E. Cordell recently was named selected as one of 27 attorneys to receive the ICON Award from Missouri Lawyers Weekly for notable and sustained success and leadership both within and beyond the field of law.

Launched in 2018, the ICON Awards are presented to distinguished
attorneys age 60 and older in recognition of their exemplary careers and
commitment to the Missouri legal community. Honorees must hold or have held a
senior position with significant decision-making authority with the firm or
organization.

The list of 2019 honorees includes founding partners,
judges, and public officials. Mr. Cordell and the rest of the 2019 honorees
will be celebrated at the second annual ICON Awards luncheon from 11 a.m. to 2
p.m. Friday, May 31, at the Missouri Athletic Club in St. Louis, Mo. Honorees
also will be profiled in print and online in a special section of Missouri
Lawyers Weekly published May 27.

Throughout his career, Mr. Cordell has worked diligently to
better the legal community in Missouri.

Fighting for fathers’ rights is what motivated Mr. Cordell
to become a divorce lawyer for men. In 1990, while practicing general law, he
realized 85 to 90 percent of his clients were coming to the Cordell &
Cordell firm for domestic relations help.

“I was galvanized by guys who were my clients and trying to get
primary custody of their children. Even though they were the better parent,
they still couldn’t get across the finish line in the courts,” Mr. Cordell
said. “The more frustrated I became, the more incentivized I was to help them.”

As the Co-Founder and Principal Partner of Cordell & Cordell,
Mr. Cordell took this passion and created the largest family law firm focused
on representing men in divorce in the world. The firm has represented tens of
thousands of clients and is powered by nearly 300 attorneys and more than 100
legal staff in more than 100 offices throughout the United States and United
Kingdom.

In 2016, Mr. Cordell founded Cordell Planning Partners, an elder care law firm that provides individuals the resources and information needed to make responsible decisions concerning their estate, assets, health, and well-being as they age.

Mr. Cordell is an active member of the American Academy of
Attorney-CPAs and was installed as the organizations 51st president
in 2014. In 2017, he was elected the AAA-CPA Missouri Chapter President.

Philanthropically, Mr. Cordell and has wife, Yvonne, have
continually given back to the legal community. They generously made a gift
commitment of $1 million in 2014 to establish and endow the Cordell & Cordell
Visiting Professorship at their law school alma mater, Washington University
School of Law in St. Louis, Mo. In 2018, the Cordells pledged $5 million to
Washington University to establish a new institute, the Joseph and Yvonne
Cordell Institute for Policy in Medicine & Law, to study issues of
ethics, medicine, and law. Additionally, the couple will provide annual support
to the establishment.

Mr. Cordell also has prioritized continuous learning and
education throughout his career and is committed to providing these opportunities to
other attorneys through ongoing education both internally and externally.

He is the driving force behind Cordell & Cordell’s annual
daylong CLE Domestic Litigation Forum, which each year gives the local legal
community the opportunity to earn a year’s worth of Missouri CLE credits in one
day for free.

He also developed Cordell College to provide an additional layer
of practice development for Cordell & Cordell attorneys. The internal
curriculum program ensures Cordell & Cordell attorneys are not only highly
skilled in domestic litigation but also in areas such as organization, time
management, and providing communication to their clients that is transparent and
easy to understand.

Click here to read more about the ICON Awards or to purchase tickets to the Awards Banquet.

The post Joe Cordell Receives Missouri Lawyers Weekly ICON Award appeared first on Dads Divorce.

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