Military-Family Law cases can be some of the most challenging.
Here are the quick answers to five common questions that arise for those in the military when facing a divorce or custody case:
1. Is Military Retirement divisible at divorce?
Yes. The portion of military retirement that is attributable to the time that a couple is married is community property. All community property is divisible by the court at divorce. That means that a divorcing couple can agree how to divide military retirement at divorce, or if the case is not settled and a trial is necessary, the court will divide it in what it believes is a fair division.
2. How long do you have to be married to be entitled to a share of Military Retirement?
There is a common misconception that if a couple is not together for over 10 years, then the non-military spouse cannot obtain any part of the military retirement in a divorce. That is not true.
The 10-year rule deals with direct payments from the government. If the divorcing couple has not been together for at least ten years, then the Defense Finance and Accounting Service (DFAS) will not make payments directly to the non-military spouse. All of the retirement pay will be paid to the retired military member, and the retired military member must pay the non-military ex-spouse.
3. Is Military Disability pay divisible at Divorce?
No. Disability payments are not like military retirement in divorce. The court cannot divide disability pay.
Whether and how the court will consider the disability payments in making a determination of how to divide the remainder of the community estate is something to be discussed in depth with an attorney that has good research and briefing skills, and a thorough understanding of family law and the military.
4. Can Active Duty military be named the Primary Conservatory of a child?
Absolutely! There is no legal impediment to an active duty military member being the primary conservator of a child. Whether the court would name the military member as the primary in a contested case would depend on what the court determined to be in the Best Interest of the Child.
A corollary consideration is whether it is possible that a geographic restriction could be put in place that would effectively limit the military member’s ability to be primary, if he or she received orders to live in an area outside the geographic boundary. Such a situation can happen, so the consideration of geographic restriction needs to be thought through at the time of the original order.
5. Can a Military Member designate someone to exercise his or her possession time with children while he or she is on deployment?
Yes, sort of — the Court can. In recent years, with the huge number of military deployments, the Texas Legislature added Subchapter L – “Military Duty” to Chapter 153 of the Texas Family Code.
Subchapter L provides, in part, as follows:
SUBCHAPTER L. MILITARY DUTY
Sec. 153.701. DEFINITIONS. In this subchapter:
(1) “Designated person” means the person ordered by the court to temporarily exercise a conservator’s rights, duties, and periods of possession and access with regard to a child during the conservator’s military deployment, military mobilization, or temporary military duty.
(2) “Military deployment” means the temporary transfer of a service member of the armed forces of this state or the United States serving in an active-duty status to another location in support of combat or some other military operation.
(3) “Military mobilization” means the call-up of a National Guard or Reserve service member of the armed forces of this state or the United States to extended active duty status. The term does not include National Guard or Reserve annual training.
(4) “Temporary military duty” means the transfer of a service member of the armed forces of this state or the United States from one military base to a different location, usually another base, for a limited time for training or to assist in the performance of a noncombat mission.
Sec. 153.702. TEMPORARY ORDERS.
(a) If a conservator is ordered to military deployment, military mobilization, or temporary military duty that involves moving a substantial distance from the conservator’s residence so as to materially affect the conservator’s ability to exercise the conservator’s rights and duties in relation to a child, either conservator may file for an order under this subchapter without the necessity of showing a material and substantial change of circumstances other than the military deployment, military mobilization, or temporary military duty.
(b) The court may render a temporary order in a proceeding under this subchapter regarding:
(1) possession of or access to the child; or
(2) child support.
(c) A temporary order rendered by the court under this subchapter may grant rights to and impose duties on a designated person regarding the child, except that if the designated person is a nonparent, the court may not require the designated person to pay child support.
(d) After a conservator’s military deployment, military mobilization, or temporary military duty is concluded, and the conservator returns to the conservator’s usual residence, the temporary orders under this section terminate and the rights of all affected parties are governed by the terms of any court order applicable when the conservator is not ordered to military deployment, military mobilization, or temporary military duty.
Sec. 153.703. APPOINTING DESIGNATED PERSON FOR CONSERVATOR WITH EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD.
(a) If the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may render a temporary order to appoint a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference:
(1) the conservator who does not have the exclusive right to designate the primary residence of the child;
(2) if appointing the conservator described by Subdivision (1) is not in the child’s best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or
(3) if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child’s best interest, another person chosen by the court.
(b) A nonparent appointed as a designated person in a temporary order rendered under this section has the rights and duties of a nonparent appointed as sole managing conservator under Section 153.371.
(c) The court may limit or expand the rights of a nonparent named as a designated person in a temporary order rendered under this section as appropriate to the best interest of the child.
Sec. 153.704. APPOINTING DESIGNATED PERSON TO EXERCISE VISITATION FOR CONSERVATOR WITH EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD IN CERTAIN CIRCUMSTANCES.
(a) If the court appoints the conservator without the exclusive right to designate the primary residence of the child under Section 153.703(a)(1), the court may award visitation with the child to a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child.
(b) The periods of visitation shall be the same as the visitation to which the conservator without the exclusive right to designate the primary residence of the child was entitled under the court order in effect immediately before the date the temporary order is rendered.
(c) The temporary order for visitation must provide that:
(1) the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator without the exclusive right to designate the primary residence of the child is entitled under the court order in effect immediately before the date the temporary order is rendered;
(2) the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;
(3) the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and
(4) the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
(d) The court may limit or expand the rights of a nonparent designated person named in a temporary order rendered under this section as appropriate to the best interest of the child.
Sec. 153.705. APPOINTING DESIGNATED PERSON TO EXERCISE VISITATION FOR CONSERVATOR WITHOUT EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD.
(a) If the conservator without the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may award visitation with the child to a designated person chosen by the conservator, if the visitation is in the best interest of the child.
(b) The temporary order for visitation must provide that:
(1) the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator described by Subsection (a) would be entitled if not ordered to military deployment, military mobilization, or temporary military duty;
(2) the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;
(3) the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the designated person has possession of the child; and
(4) the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
(c) The court may limit or expand the rights of a nonparent designated person named in a temporary order rendered under this section as appropriate to the best interest of the child.
Being in the military or being married to someone in the military has a great many challenges. Trying to understand all of your rights in a Divorce or Custody case without competent legal help can make for some additional, possibly insurmountable challenges.