How Are Your Military Benefits Subject in Divorce?

How Are Your Military Benefits Subject in Divorce?

As a member of the military you may be stationed at a base outside of Texas, but that may not restrict your ability to file for divorce in Texas.  Jurisdiction for filing is the first thing to review immediately upon deciding to file for a divorce. If your home state is still listed as Texas, then it is important to review Texas Family Code §§ 6.303 and 6.304 to see where filing of the suit may be appropriate.  It is important to have a family law attorney with military experience discuss the matter with you as the filing and venue of the suit can drastically change the applicable laws regarding child support, spousal support, alimony and division of property.

After having considered the venue, the next step after filing for divorce is typically service upon the parties in any suit for dissolution of marriage.  This again affords military members certain protections that are not always given to civilians.  Under the Servicemembers Civil Relief Act (SCRA), previously known as Soldiers’ & Sailors’ Civil Relief Act, the court may require a stay of the proceedings should the military member be on active duty, impeding their ability to appear at a hearing.  Under 50 U.S. Code § 3932 an automatic stay of 90 days is granted for the servicemember seeking such relief.  The federal laws help ensure that a servicemember’s rights are protected while serving his country and that the servicemember has adequate time to respond.

Once the suit has begun and all parties are accounted for, the question most servicemembers ask is regarding the benefits derived to them from their military service.  The most common benefits are outlined below:

  1. What part of my military paycheck can count towards possible child support? 
    With most servicemembers the base pay is always counted and the Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) should be counted as well.  In other words, all of your paycheck should go towards a calculation of your support in Texas.
  2. Will my spouse get a portion of my military retirement?
    Yes.  Unless you settle the issue of retirement in an agreement a military spouse is allocated a portion of the military retirement that was earned during the marriage.  This differs greatly depending on whether the points are accrued during full service or as a member of the reserves. It is crucial to have an attorney who understands such division of benefits to properly ensure all parties’ rights are defended.
  3. Is my spouse entitled to my disability pay?
    No. Disability pay may be considered in a calculation of child support but cannot be divided unless by agreement of the parties.  Disability pay is considered the servicemember’s separate property as a result of their sustained injuries.  This is a federal law that the state of Texas has upheld in its rulings. 

While the above comprise the most common questions asked, it is important to have an attorney who understands military law for all your other questions regarding military issues in divorce proceedings, including but not limited to medical benefits (20/20/20 rule); commissary and exchange privileges; Survivor Benefits Plan (SBP); and so forth.  All of these nuances can be critical factors in the final determination of your divorce and accompanying property division which need to be addressed with an attorney well versed in these aspects of law.

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