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How Federal Benefits Are Affected by Military Divorce in California

How Federal Benefits Are Affected by Military Divorce in California

Military service can make the already complicated challenge of divorce even more difficult. If you are facing divorce in California, this short guide will get you started on some of the key issues to think about.

The post How Federal Benefits Are Affected by Military Divorce in California appeared first on Divorce Magazine.

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Handling military retirement intelligently during your Texas divorce

Handling military retirement intelligently during your Texas divorce

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Your marriage of ten, twenty or thirty years may have flown by but now you are considering a divorce. Not only is this going to affect you and your spouse presently but your future well being may be impacted as well. Beyond the immediate loss of your spouse is the long term impact that losing out on retirement savings that may be needed for your post-work survival. In an age where we are all concerned about the viability and sustainability of Social Security is the reality that many people remain married to their spouse into retirement age because they feel like they have no choice but to remain married in order to ensure a comfortable life after retirement.

What can be done in the event that your spouse is in the military and you are now moving towards a divorce? Can you divide military retirement benefits as you could civilian retirement benefits? What are the risks to you in moving forward with a divorce from a financial perspective? There is a lot of information about military retirement benefits in a divorce from a general perspective but I wanted to share some in-depth content with you all on this subject. Today’s blog post from the Law Office of Bryan Fagan will seek to answer those questions.

There are really two kinds of divorces: military and nonmilitary

While the divorce laws in our state are the same for all married people, it is important to note that military divorces have several components that differentiate them from non-military divorces. The reasons for that are due to the unique lifestyle that military members have, the effect of military service on a servicemember’s family as well as the challenges that division of military retirement benefits has on divorce participants.

The problem that you as a military member or military spouse are going to run into in trying to do research and locate an attorney that has knowledge of these issues is that very few attorneys have the collective experience in handling military divorces and dividing up military benefits correctly for their clients. The attorneys with the Law Office of Bryan Fagan do have that experience and are therefore interested in being able to share that experience with you today.

Think about it- you wouldn’t want to ask an attorney with no divorce experience to represent you in a divorce case (Although many people do). You also wouldn’t want to ask an attorney with no experience handling military divorces to represent you in a divorce case either. Still, you may be surprised when I tell you that many people walk into courtrooms and mediation offices with an attorney who has never dealt with military divorces before. While I appreciate those who have never had that experience attempting to gain it I cannot recommend that you be the person that the lawyer “practices” with.

As much as offering you advice and perspective on the specific subject of military divorces I would like to use this blog post as a means by which you can figure out if the attorney you are speaking to actually has the requisite knowledge of military divorces to represent you and your family. Interviewing family law attorneys is not something that comes naturally to most people. It is not difficult for you to lose sight of your objective in a meeting with an attorney when it comes to actually try to determine how much that particular attorney has in handling military divorces. It is not something that you want to try to figure out on the fly, either. You need to prepare yourself to listen for certain things and ask certain questions to elicit those responses.

Finally, I hope that this blog post impresses upon you the complexity with which family law cases operate- especially divorces. You may have people in your life- friends or family- that have handled their divorce without any representation. Those people may have been able to walk away from their case unscathed but remember that not all cases are created equal. Even if you believe that you and your spouse want a quick and easy (painless) divorce that may not be how it actually turns out. Your divorce case could very well be contentious and we know that it is going to be complicated if yours involves military retirement.

How much of your military retirement benefits does your spouse stand to receive in a divorce?

From the perspective of a member of our military, you likely did not enter the service in order to gain the approval of your friends and family. There are certain jobs that require less effort and sacrifice that you could have entered into. Rather, you joined the military because you love our country and wanted to help your fellow citizen. Maybe your family has a history of military service. Maybe you had a role model growing up that was a Marine and so that inspired you to become a Marine as well. Either way, you entered the military as a genuine reflection of your appreciation of our country and our values.

However, that’s not to say that you also don’t appreciate the material benefits afforded to you as a member of the military. That includes military retirement benefits. There is nothing wrong with looking out for yourself and your longevity in relation to your divorce. You have worked hard to accumulate some security for yourself after you retire from military service and you do not want to sacrifice that security unnecessarily. At the same time, you likely don’t want your spouse to walk out of your divorce with nothing to show for their commitment to you and what sacrifices for made at home so that you could complete your objectives in your military life.

The number one question that I am asked in consultations with military members is what is likely to happen with their retirement savings in a divorce. If you are a military member you may be wondering the same thing- what does your spouse stand to be able to leave your divorce with as far as your military retirement benefits are concerned?

In most Texas divorces your military retirement benefits will be divided, at least that portion that you accumulated during the course of your marriage. Obviously the longer your marriage has lasted the bigger the slice of your retirement pie that can be divided up. Those benefits that accrued during your marriage are considered to be community property. Community property is subject to division in your divorce. It does not matter that your spouse did not work a day in their life for the military, or perhaps at all outside the home. The State of Texas does not distinguish between spouses in this regard. If you and your spouse were married then your earnings are theirs and vice versa, for better or worse.

Whatever you have earned towards your military pension before your marriage is yours to keep with your spouse having no rights to it. This falls in line with general theories of separate property in Texas. The discussion becomes much more complicated once we get past these fairly straightforward concepts surrounding community and separate property, however.

Military pensions are a bit different from civilian pensions

One important thing to take note of when it comes to military pensions is that the military will not allow your spouse to take home from your divorce more than 50% of your pension. As I touched on in the section prior to this one, the question then is how long have you been married? The longer the length of your marriage the higher the percentage of benefits that your spouse could potentially walk away from the divorce with.

The way that the State of Texas calculates how much your spouse could stand to keep from your military pension compares your total number of months married while you were an active duty member of the service with the total number of months that you have towards retirement benefits.

For example, if you were in the military for twenty years and only married for the last ten years, your spouse wouldn’t have any standing to ask for anything related to your first ten years of military service from a retirement perspective. If you are still in the military at the time of your divorce things become even more complicated than this.

When you are still an active duty servicemember at the time of your divorce

The State of Texas uses a complicated equation to determine the exact amount of retirement benefits that your spouse is able to walk away from the divorce with if you are still actively engaged in your military service at the time of your divorce.

There are basically six component parts to the equation. If you were not a great Math student in high school then you may want to sit down for this. You would take 50% (the percentage of your spouse’s community interest in your military retirement) and multiply that by the number of months that you were in service as a military member during your marriage divided by the number of months in total that you have served as an active duty military member.

Once you have that percentage you will multiply it by .025 x the years and months in active duty military service. That number is then multiplied by the average of your military base pay for the past three years.

Once you have that number you would divide by your monthly gross retired pay at retirement.

Finally, multiply this number by your monthly disposable retired pay at retirement and you finally have a number that your spouse will be able to walk out of your marriage with.

Not only is that fairly convoluted but it takes to research and communication with your attorney to arrive at the correct number. For instance, to figure out what your 36-month base pay is you would need to turn over your payroll records to your attorney. Your attorney will then create a table that will show your base pay for the past three years. Asking an attorney to do math is risky in and of itself (kidding) but to do so you better be sure that your lawyer knows their math and the law.

Is it possible for you to keep all of your military pension in your divorce?

The short answer to this question is, “yes.” The longer answer is yes with some details attached to it. The main detail is that you will have to negotiate with your spouse to get to a point where you are walking away with the entirety of your retirement benefits intact. Sometimes you have a situation where your spouse does not want any of your retirement. Believe it or not, these case happen- not often, however. In other situations, you will need to trade retirement benefits for something else. Maybe you have a separate property interest that you can offer in place of the pension. Maybe a portion (or all) of the rest of your community property share of your equity in your home or some other significant asset can be offered to your spouse.

More on the specifics of dividing a military pension will be discussed in tomorrow’s blog post

I hope that today’s blog post was not only interesting to read but also caused you to stop and think about some of the specifics associated with dividing military retirement benefits. It is not a simple or straightforward process and should not be entered into lightly. While your attorney will be charged with providing advice and counsel to you, it is ultimately your case and your livelihood that is at stake. Be prepared for your case by joining us tomorrow to read more about this important subject.

In the meantime, if you have any questions about the material that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations with our licensed family law attorneys six days a week. We can discuss your case with you, answer questions and address your concerns in a comfortable and pressure-free environment.

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



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Want to resolve your Texas family law case outside of court? Remember these rules of engagement

What do military parents need to do to ensure their children are cared for prior to deployment?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Military parents have a great deal on their minds, both before setting off for deployment and while overseas. If you count yourself among those people who serve in our armed forces I would like to first thank you for making that sacrifice for all us here in southeast Texas. We are indebted to you for your willingness to go above and beyond in protecting our country. The sacrifices that you make are especially difficult if you are a parent.

Today’s blog post from the Law Office of Bryan Fagan is geared towards helping you to know what is recommended for you to take care of prior to your being deployed. Obviously, it will be very difficult for you to focus on anything other than your mission once you are overseas, so it is much wiser to start focusing on these issues now rather than later. Financial, medical and emotional support for your children is essential to their being able to grow up and become positive contributors to our country.

Does your child have a legal father?

This is not the same question as asking whether or not your child has a father. If you are a mother who was not married to your child’s father at the time your child was born, he or she could be lacking a legally recognized father. When two parents are married, there is a legal presumption that when a child is born the mother’s husband is the father to the child. No further action needs to be taken by the couple to have this legally established. However, that presumption does not exist when parents are not married.

If you and the other parent were not married when your child was born you could have completed a voluntary acknowledgment of paternity (AOP) that is your statement under oath that this child is your biological offspring. If you and the child’s father fills out one of these forms and files them with the state, no further action will need to be taken. The father of your child will from that point forward be the legal father of your child. While an AOP may not have been completed, a court order may have been obtained previously that legally recognizes the father of your child.

Or, you could find yourself in a position where fatherhood was not acknowledged voluntarily and you have not yet been to court. Some people in your position find themselves not knowing at all what the situation actually is. Does your child have a legally established father or not? If this sounds like where you are, then you can choose to go one of the two routes I described above. You and your child’s father can voluntarily acknowledge paternity or you can file a paternity lawsuit and have paternity determined through a court case.

Are there orders in place from a court that deals with custody, visitation and child support?

This is another big issue that you need to attend to prior to going overseas. It is likely that you and your child’s other parent will share parental rights and responsibilities. A possession order will determine how much time you will be able to spend with your child and when. With your going overseas it is seven more important that you know what the visitation you will have with your child is going to be like once he returns from overseas. Most parents who have gone through family law cases are joint managing conservators. You can ask a court to have your ex-spouse or child’s other parent to be able to determine the primary residence of your child while you are outside of the country.

Rights and duties relevant to the possession of your child

While most parents in Texas share on a near equal basis in the rights and duties associated with raising their child, one right that is not held equally is the right to determine the primary residence of your children. Either you or your child’s other parent will hold this right individually. The parent who has this right is known as the custodial parent. The other parent is known as the non-custodial parent. The non-custodial parent has their time spelled out in the court orders under a possession order.

An important question to ask yourself is who will be able to have custody of your child while you are deployed overseas. As mentioned a moment ago, you can ask the court to be able to allow the other parent to be able to determine where your child lives while you are away overseas. Likewise, if you are the noncustodial parent to a child then you can ask the court to assign your visitation time with your child to another adult.

What is the parenting plan going to look like while you are deployed?

A court order goes into a great amount of detail regarding a number of different subjects related to you and your child, but it typically will not discuss with much detail what will happen with your child should certain contingencies occur in your lives. There just simply is not enough room to work every hypothetical situation into this document.

What you and your child’s other parent can do is create an agreement/roadmap that will go into the level of detail that you would like. That way there will be no question as to what will happen when you are deployed and are not able to fulfill your duties as a parent when you are shipped overseas.

What about child support? Will your child still be able to receive support even after you are not ln the country. A child support order includes two requirements. The first is that financial support be provided to your child and the second is that medical support will also be provided. If you are the noncustodial parent, then you need to be aware that your net monthly resources will be what is needed in order to determine how much child support you will pay.

It happens on occasion that sometimes parents who are deployed overseas seas is that their income can change- either positively or negatively. If this occurs, you can request a modification of the current court orders to show exactly what degree of an income increase or decrease has occurred. This could be true even if you are the parent of a child who will not be deployed but who raises a child with a person who will be. You can also ask to have a modification of the amount of child support that you receive done.

You may want to see if you can arrange it so a relative of yours has access to your bank accounts while you are overseas. This can come in handy if your child needs someone to help him or she pays for something while you are deployed.

How to get child support set up before you go overseas for deployment

If you and your child’s other parent have never been able to agree upon how much child support should be paid, then it is a good idea to attempt to get this number established by a court prior to your being deployed.

Many parents find themselves in a position where he or she will agree with the other parent on an amount to pay in child support, only to see that other parents increase the amount for seemingly no reason at all. Thus, if you want to avoid the chances of your child’s other parent asking for an increase in child support while you are deployed, it is wise to attempt to get a court order before you even leave the country. Since custody, visitation and other aspects of parenting are also taken care of in a child support case, there are even more reasons to attempt to establish a fixed amount of child support prior to deployment.

Can you designate another person to receive information about the amount of child support that you pay or receive when you are out of the country on deployment?

You are able to designate another person to receive information about your child support case by filling out a form and sending it into your local child support office. You can go to the Office of the Attorney General’s website for more information on this. Likewise, you can also revoke this form when you return from deployment.

What happens if you are already deployed and your child is born?

As far as logistics is concerned, it would be a lot easier for you if your child is born before you are deployed to another country. However, sometimes you cannot control when these things happen. In the event that you are overseas when your child is born and you are not married to the child’s mother, you can still establish paternity via an Acknowledgment of Paternity being completed.

You may not be sure if you are the child’s father. If that is the case you should not sign any paperwork until you can have genetic testing administered. Free DNA testing is offered through the Office of the Attorney General.

If you are beyond the point of establishing paternity, you should do whatever you can to maintain a relationship with your child when you are overseas. Technology has made this task much easier given that phone calls, email, Skype, social media and text messaging are all prevalent. It is true that you will not have as much of an opportunity to take advantage of these methods of communication but you should seek them out when you have the available time. You can have a profound impact on your child even when you are thousands of miles away.

You can also check in with your child’s other parent so you can maintain a sense of decision-making capabilities when it comes to the daily life of your child. School activities, extracurricular events, doctor’s visits, and many other occurrences will go on in your absence. You can feel less homesick and distant from your child by keeping up to date with what is going on in their life as best you can.

What should you do when you get back home from deployment?

You should get in touch with the Office of the Attorney General’ child support division in order to re-establish who is to receive child support on behalf of your child and who can access information about your child now that you are back home.

Noncustodial parents should ask the OAG to review your case if your income has increased or decreased as a result of being deployed. The child support that you pay no longer be correct based on those changed circumstances.

Finally, you should spend as much time with your child as possible. While he or she is likely very happy to have you back home, it may take some time for him or her to adjust to your being home instead of overseas. You can learn about your child’s life and how it has changed. This will help you to make decisions with your child’s other parent about your child’s well-being.

Questions about family law issues in Texas? Contact the Law Office of Bryan Fagan

Do you have any questions about the content in today’s blog post? If so, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week. These consultations are a great opportunity for you to ask questions and receive direct feedback about your particular circumstances.

Our attorneys and staff take a great deal of pride in being able to help the people that live in our community. We practice in all of the family courts of southeast Texas and work every day to help our clients achieve their goals. If you are facing challenging circumstances related to your family, you need to look no further than the Law Office of Bryan Fagan to assist you in whatever capacity you need.

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



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