SPECIAL CONSIDERATIONS FOR MILITARY DIVORCE
Texas Law provides legal protections for service members, particularly during their absence or in the event of their injury during service.
The United States Military puts duties on service members to prepare Family Care Plans in certain circumstances prior to deployment. Family Care Plans and the Texas Family Code compliment one another, in that both are designed to address medical, financial, child support and custody issues while a service member is deployed.
In 2009 and 2011, the Texas Legislature enacted new laws concerning the consent to medical treatment and other types of care of a child by a person who is not the biological parent of a child. Under certain circumstances, the Texas Family Code authorizes the execution of an “Authorization Agreement,” which will let immediate relatives of the service member consent to the medical treatment and care for children.
Texas law can give special consideration to military members with children. Possession of children can be particularly difficult when one parent lives in a town, state, or country that is any significant distance from the primary residence of the child. The child’s school schedule and activities all need to be taken into account when arranging for travel between the residences of both parents. This is particularly true when airline travel is involved, as arrangements have to be made for payment of travel and arrival and departure of the child in accordance with their school schedules. When one parent is deployed to a war zone, visitation will be impossible for all intents and purposes, at least during deployment. With the advent of email and Skype, the creative family lawyer can craft a court order that will give access to the child by the military parent on a regular basis. Court orders can include very specific provisions about when the child needs to be available to Skype with their parent and about what type of computer equipment the non-military parent is required to maintain.
The Texas legislature has recently enacted some statutes that attempt to address possession when one parent is absent due to military deployment. If a parent is ordered to be deployed in such a manner (e.g. to a war zone) that they cannot exercise possession or other rights and duties, either parent may file a specialized suit under the Family Code. The court is given the authority to temporarily put orders in place while the parent is deployed, which may give a family member, such as a grandparent, the right to step into the shoes of the parent. During deployment, the court may award visitation to a person designated by the service member who primarily cares for the child, and the periods of possession of the designated person will be the same as the rights the non-military member previously had. As an example, if the mother of the child is in the military and primarily cares for the child, the court should give the rights and possession normally held by the mother to the father. Then, the court should order the possession normally held by the father to a person designated by the mother.
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The state in which a divorce or custody suit can take place often becomes an issue for military members and their spouses. A suit for divorce may not be maintained in Texas unless at the time the suit is filed either party has been: (1) a resident of Texas for the preceding six-month period; and (2) a resident of the county in which the suit is filed for the preceding 90-day period. The residency requirement will also be met when both the military member and their spouse reside in Texas due to the military service.
The issue of jurisdiction becomes even more complicated if children are involved. Texas has interstate custody laws, more commonly known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). All but two states have enacted laws similar to Texas’ UCCJEA, and this law can be particularly relevant when one or both parents are members of the military. The UCCJEA is designed to prevent multiple suits in multiple states concerning the same child. It is also meant to make one state’s court order enforceable in another state when one or both parents move to a different jurisdiction.
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Texas is a community property state, and, as such, all property in possession of either party on the date of divorce is presumed to be community property. All property acquired during the marriage (except gifts, inheritance, and some personal injury proceeds) is community property, and this can include retirement benefits. Military retirement is subject to characterization as either separate property of the military spouse or community property. In general, the portion of the retirement benefits acquired before marriage will be confirmed as separate property of the military spouse. The portion of the retirement benefits acquired during marriage will be community property. Therefore, retirement benefits earned from years of service during the marriage are community property and are subject to division by the court in Texas.
In Texas, the Court has wide discretion to divide all property, including military benefits, in a manner it sees as just and right, taking into account all assets of the marriage and the needs of the children of the marriage. This can include awarding a portion of the military pension plan to the non-military spouse. This can also include hiring an expert to give a value to the military pension and offsetting the value of this pension by giving the non-military spouse other assets. The court may consider numerous factors in dividing property, including the spouses' capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, the nature of the property, and the disparity in earning capacities or of incomes is proper. Regardless of the division of property, military benefits acquired during the marriage need to be addressed by the Court.
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Click here to read more in a paper written by Partner Audrey Blair, entitled:"Legal Protections in Texas for Service Members and Family Care Plan before Deployment."