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Handling military retirement intelligently during your Texas divorce

Handling military retirement intelligently during your Texas divorce

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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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realities of divorce

6 Tips For Handling The Realities Of Divorce

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realities of divorce

 

A couple of weeks ago I saw the post below go through my Facebook newsfeed. It was written by a newly divorced Mom who had learned five realities of divorce while attempting to sell a home and raise her children on her own.

No one tells you divorce makes you an outcast. No one tells you people really do take sides, & they will do it in your face. No one tells you how to learn to get over it. How to sit with your grief.
No one tells you how vulnerable you’ll be & how everything feels shitty. No one tells you you’ll look back at the calendar with disbelief at how long divorce takes and the disentangling and how suddenly the people you thought you knew best…are total strangers. Ghosts.

This Mom is wrong, those things have been told. They’ve been told by experts, they’ve been told by other women who’ve gone through a divorce.

She didn’t discover some dark hidden truth about divorce, she just came face to face with the realities of divorce. Because who pays attention to other people’s problems until they are faced with those same problems?

The realities of divorce will be quite different from what you’ve imagined divorce to be. Don’t be caught off-guard like this woman!

I write about it and other divorce experts share the ugly side of divorce in books and articles daily online. The problem is, the experts aren’t being read or, if they are, folks reading our advice think, “That couldn’t happen to me, my situation is different.”

And, nothing stands in the way of a newly divorced person moving forward and creating a satisfying life more than the “I’m different” thought process. The idea that bad divorces only happen to other people. Or, the belief that people who experience pain and suffering after divorce do so because they did something wrong. These are thought processes that are prevalent among those deciding on and going through a divorce.

Most are under the illusion that divorce is the road to happiness and when faced with the realities of divorce are lost at how to process it and use it to their own advantage. Divorce is not the road to happiness, divorce is hard, harder than most bad marriages and when it turns your world upside down it’s in your best interest to be mentally prepared or you will drown in the “no one told me” pity party.

How to Handle The Realities Of Divorce:

1. The danger in not knowing and expecting the realities of divorce only keeps you stuck in a state of disbelief when those realities become part of your daily life. So, don’t allow yourself to go through a divorce unless you are armed with knowledge about what divorce is and can become. If you read something negative about the consequences of divorce, don’t throw on your shroud of, “that only happens to other people.” Instead, take it to heart.

2. During divorce, people will shun you and even your best friends will take sides and it won’t always be your side. Let them! It’s of no consequence when it comes to how you choose to live your life. Focus on the people who supported you during this painful period in your life, not the ones who turned their backs. That is a more productive use of your time.

3. Divorce means experiencing loss, it’s the death of your marriage. You must learn to adapt to and adjust to that loss and rebuild your life. First, you must grieve and “sit with” the loss. If you are unsure how to do that, Google, “grief after divorce.” There are over 30 million articles and books available for those who are coping with the grief of divorce. Find an article or book that brings you comfort, join a local support group or reach out to friends and family. The key is to admit your vulnerability and be willing to reach out for help.

4. Yep, everything can be “shitty” after a divorce. And when it is, you can feel powerfully vulnerable. Divorce forces people to change when all they want to do is escape the pain. Divorce turns everything upside down. You have to redefine who you are and what you want out of life. When you are in pain and seeking comfort from that pain it can be hard to focus on the one thing that will relieve the pain…embracing the change. Making those necessary changes is the only thing that will take away the “shitty” feelings that pop up during and after divorce.

5. Your lawyer isn’t going to tell you how long the legal process of divorce will take. There are legal guidelines but those can be tossed out the window because, the longer a divorce takes, the more money your lawyer will make. So, here I am, telling you, if you don’t become a proactive part of your legal divorce you will look back in disbelief at how long it took. Just because you hire a lawyer doesn’t mean you should not become an active member of your own divorce team.

6. Learn your state’s divorce laws. Learn your local court procedures related to Family Court matters. Hold your lawyer accountable at the first hint of him/her engaging in adversarial legal tactics. Divorcing couples do not have to come out the other side hating each other if they refuse to allow a dysfunctional family court system to determine the course of their divorce.

There you go, I’ve told you, again. Divorce is no walk in the park. Divorce is not the end of conflict. Divorce is not the road to happiness. Divorce puts an end to marriage but it also puts into play many, many other issues that can be stressful to deal with if you aren’t prepared to meet them head-on. Be prepared!

The post 6 Tips For Handling The Realities Of Divorce appeared first on Divorced Moms.

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Handling issues related to the Right of First Refusal in Texas family law cases

Handling issues related to the Right of First Refusal in Texas family law cases

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

The right of first refusal is an issue that comes up in family law cases that can cause even the most creative and experienced family law attorney to scratch their heads on how to proceed. Essentially, the right of first refusal allows a parent who is not entitled to possession for a specified period of possession to be able to take possession of the child if the other parent is not able to do so. Allow me to provide you with an example of how this situation could arise in real life.

Suppose that your ex-husband is scheduled for a visitation period with your son beginning at 6:00 p.m. on this Friday and ending at 6:00 p.m. on the following Sunday. In the morning on Thursday, he receives a phone call that alerts him to the fact that he will need to work this weekend. Since your divorce decree contains a right of first refusal, he must contact you as soon as he becomes aware of this scheduling conflict and provide you with your right to refuse visitation that is offered to you. You have the option to take possession of your son this weekend even though the divorce decree states this is your ex-husband’s weekend for possession of him.

We also see issues that arise when parents like yourself begin dating again after a divorce has concluded. If you are not able to take possession of your child for a weekend visit, you may want your girlfriend to be able to pick your child up from his mothers’ home and then drop him off the following Sunday. Since you are able to designate an adult to pick your child up in the event that you are unable to, what’s the harm in having that same adult care for your child during a weekend that you’re not able to see him? Your girlfriend may really want to see your child, and after all- it’s your weekend so it should be your call, right?

How is the right of the first refusal defined in your custody orders?

This is the first question that we need to ask ourselves in relation to your particular circumstances. If you are considering whether or not to include a right of first refusal in your child custody orders, you and your attorney need to first think about how that term is going to be defined and applied as it pertains to your family. What is the specific period of time that a parent cannot be with the child that will cause the right of first refusal to be triggered?

You may be able to negotiate that if you or your new spouse is unable to be present with your child during a period of possession (sometimes lasting between four and eight hours), then you must contact your ex-spouse and allow him or her to come and pick up your child for that certain period of time. Whenever the predetermined/agreed to amount of time is over, your ex-spouse would then return your child to your home and allow you to complete your period of possession as scheduled.

Even when you get specifics as this handled, you need to consider the effects of including that kind of language in your order. If your ex-spouse gets home from work at 12:00 a.m. do you have to get your son dressed and over to the other parent’s house within the hour? That would seem impractical and not necessarily in your child’s best interests, but strict language regarding the right of first refusal could theoretically make this a necessity. A compromise could be that if the parent were to become available to possess the child at a time after 9:00 p.m., the parent in possession of the child on a temporary basis could wait until 9:00 a.m. the following day to drop the child back off at the other parent’s home.

The other issue that we need to discuss is what your child would be comfortable with as far as a substitute adult to possess him or her when you or the other parent is not available. It sounds ok enough for you to have your mother, father, aunt or girlfriend available to watch your child for half a day when you have to work unexpectedly. However, if your son doesn’t get along with any of those people then it would not seem like it would be in his best interests to leave him with any of those folks. Unless you and your child’s other parent have a group of people that are able to care for your child in these situations then a right of first refusal may not be a wise thing to include in your orders.

How will extracurricular activities be handled?

In this day and age, there are camps, classes, training sessions, and other activities for any sport or extra-curricular event under the sun. Odds are decent that you and your ex-spouse may not see eye to eye on your child’s potential or the role of these activities in the life of your child. For instance, you may believe that your child should only be involved in extracurricular activities to the extent that they can make friends and build their self-confidence. However, your ex-spouse may believe that these additional activities are essential for the development of your child and that he or she has the potential to become a professional ball-player, musician or dancer. How can this fundamental disagreement be solved?

I have seen some families achieve success when each parent is allowed to select one activity for their child to participate in each semester of school. The costs for activities would then need to be divided up in some manner between parents. Additional activities (camps, classes, etc.) would be paid for by the parent who selected that activity. Transportation to and from activities would also need to be determined. If you and your ex-spouse earn similar incomes the costs could be split evenly. Otherwise, a proportionate split may be more appropriate.

Another issue that may be relevant to discuss for your family is whether or not both parents may attend practices or rehearsals. If you and the other parent can be around one another without issue then this is not a problem. However, if you all have shown an inability to be in close proximity to one another you may have to limit attendance to the parent who paid for the camp or activity. Both parents in most cases can attend performances and games, no matter what parent is in possession of the child on that particular day.

How will you be reimbursed for uninsured medical costs?

As a part of any child custody order, you or your child’s other parent will be made to be responsible for providing health insurance for your child. Whether it is insurance provided for by one of your employers, insurance through the private marketplace, Obamacare or Medicaid, your child will need to be covered. One of you will pay for that insurance or will reimburse the one who pays for medical coverage.

However, not every cost that your child will incur for medical treatment will be covered by insurance. These are called uninsured medical costs. Suppose that you take your child to a pediatrician appointment and he orders a test for your child that is not covered by insurance. Once you receive a bill for that test you would need to submit the bill to your child’s other parent so that he can pay you back for the test you paid for (in the event that it is his responsibility to pay uninsured medical expenses).

What I will advise clients to do is to negotiate to include a deadline by which medical bills have to be submitted for reimbursement purposes. For instance, a provision in the order that specifies how much each parent has to pay towards uninsured medical costs, as well as a deadline to submit the relevant bill to the other parent, is a good idea.

I would tell you that it is common to have parents agree to split 50/50 uninsured medical costs. Since it is usually the primary conservator who takes the child to the doctor or for unscheduled visits to hospitals and such, it will be that parent who has to pay the bill upfront. What I tell parents in this position to do is to set up a reminder on their phone to submit bills by the end of the month to the other parent to be reimbursed, However, a good practice is to simply scan and email the bill to the other parent as quickly as you can. That way you have a record that the bill was submitted and you can be paid back as quickly as possible.

Issues related to military parents

If you are the primary conservator of your child and have been deployed overseas as a member of our military, you have the ability to designate an adult to exercise your possession and conservatorship rights while you are overseas.

The law in Texas is there is an order of preference as far as assigning that right. For example, you should first give preference to the other parent. That other parent would not normally have the right to determine the primary residence of your child, but you could allow him or her to act in that capacity for as long as you are overseas and unable to do so yourself. However, if selecting the other parent to take these rights on a temporary basis were not in the best interests of your child, then a nonparent may be chosen instead.

Special provisions for special needs children

When you are involved in a case with a special needs child then you and your attorney will need to pay especially close attention to the rights and duties that you and your opposing parent have in relation to that child. There are likely aspects of your special needs child’s life that are extremely important to spell out in the order. Unfortunately, a “typical” child custody order will not do so. You all need to take the extra step and include provisions to protect that child’s interests and well-being.

Both you and your child’s other parent will need to be able to provide to one another more detailed information regarding the child’s educational, medical and psychological needs. Trading information and updates may be difficult for you all if communication is not your strong suit. As a result, it may be necessary to have some special orders included in the parenting plan that requires you to share updated medical information with the other parent on an as-needed or regular basis.

You would need to come to terms with what your child’s specific needs are and then determine how frequently updates need to be provided to each other. If your child sees the doctor on a weekly basis, and you are the parent who always goes to the appointment, it may be necessary for you to provide a weekly update to your ex-spouse on your child’s condition via email or another electronic means.

More information on special needs children to be provided in tomorrow’s blog post

The issue of special needs children is an important one. As such, we will continue today’s discussion in tomorrow’s blog post. We will introduce additional topics related to special needs children that we have observed in our years of practicing family law in southeast Texas. If this is a topic that is relevant to you or your child, it is a good idea to head back to our blog tomorrow to read more.

In the meantime, if you have any questions about the material that we covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you at no cost. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances.

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



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