Summer Wedding Coming Up? Now may be the time to learn some Family Law.

Wedding Checklist - shutterstock_406104781

Summer is a great time for weddings. School is out, the weather is great, and it stays light until late.

If you have a wedding coming up, or you have a son or daughter that does, you have no doubt spent a large amount of time planning everything. The one thing that you may not have had time for yet is an education on what a marriage does to a couple from a legal perspective.

Once the couple is wed, a community estate is created that did not exist just a few seconds earlier. The couple has legal obligations to each other that they did not have just a few seconds earlier. And the bride and groom are tied to each other in ways that they may have never contemplated.

If this is not a first marriage for one or both of the parties, there can be the added complexity of having gone from a separate estate to a community estate, back to a separate estate, and now creating a new community estate.

If there are children already in the picture, the rights and duties of the parties can be drastically altered by the new marriage. If not, or if some come along in the future, it’s good to know in advance how all of that works legally.

Regardless of the situation, beginning a marriage is beginning a new life. Knowing the law is like knowing the Rules on the Box Top of Life; learning some Family Law can give you some knowledge of the Rules on the Box Top of Marriage.

If you or a close family member are about to begin a new life, now may be a good time to make a small investment in some time with a Family Law Attorney to find out how things will change as soon as the second “I do” is spoken.

To speak with an attorney at the Beal Law Firm, please call us at 1-800-811-0380 or write to us at lawyers@bealfirm.com. We would be happy to sit down with you and answer all of your questions.

Child Custody: What is a Standard Possession Schedule?

A key part of any custody order is the possession schedule. Understanding it is the key to understanding when you have the right to have possession of your children and when you don’t. In Texas, Family Code Section 153.312 specifies what the Standard Possession Schedule is. By law, the Standard Possession Schedule (also known as […]

A key part of any custody order is the possession schedule. Understanding it is the key to understanding when you have the right to have possession of your children and when you don’t.

In Texas, Family Code Section 153.312 specifies what the Standard Possession Schedule is.

By law, the Standard Possession Schedule (also known as the SPO) sets out the minimum amount of time that is presumed to be reasonable for a fit parent to have with his or her children. Meaning that unless evidence is introduced proving why it would not be in the Best Interest of the Children to spend at least that much time with a parent, a judge must give a parent at least that much time. For a discussion of the Best Interest standard, see this previous blog post.

At the outset of virtually any possession schedule, whether it is an SPO, Modified SPO, or something else, you will find a statement that “the parties may have possession of the child at times mutually agreed to in advance by the parties.”

If the parties don’t agree on something different, then the terms of the possession schedule in the order control. The basics of the Standard Possession Schedule for the non-primary parent – when the parties live within 100 miles of each other – are this:

  1. First, Third, and Fifth Weekends.

In an SPO, the non-primary parent has the right to have possession of the children on each of the 1st, 3rd, and 5th weekends, from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. The number of the weekend in a month is determined by the Friday. So the 1st Friday of the month starts the 1st weekend of the month. There are usually only four 5th Weekends per year, and often two of them get “trumped” by holiday or summer schedules.

  1. Every Thursday evening, during the school year.

It is critical to note that the Thursdays are only during the school year, even if the child does not attend school. In that case, the calendar of the school in which the child primarily resides is used for the dates of the beginning and ending of the Thursday night possessions. In the SPO, the times for the Thursday evening are 6:00 p.m. to 8:00 p.m.

  1. Every other Thanksgiving and Spring Break.

The parents alternate the Thanksgiving Breaks and the Spring Breaks each year. In the past, some schools only allowed Wednesday, Thursday, and Friday off for Thanksgiving, but now most schools appear to take off an entire week. Regardless of the length, the parent that has the children for Thanksgiving gets them for the entire time that they are out of school, per the SPO.

  1. Christmas Break alternates 1st part and 2nd part.

Under the SPO, Christmas break is divided into two parts. The first part is from the time school is out until noon on December 28th, and the second part is from noon on the 28th until school starts again. In years past, the SPO provided the dividing line on December 26th. Regardless, one parent gets the 1st part in even-numbered years, and the 2nd part in odd-numbered years and vice versa.

  1. Summer Break.

In the summer, the SPO provides that the non-primary parent keeps his or her weekends – subject to some other rules – loses their Thursdays, but gains an extra 30 days. The 30 days have to be exercised in no more than two groups of no less than seven days each. If the non-primary parent fails to give notice of what days he or she wants the children for the summer, there is a default provision, which is basically all of July.

Keep in mind that there is a lot more to it than this. And the terms talked about above do not include the Expanded or Extended provisions, which will be covered in a future blog post. Additionally, be aware that the Standard Possession Schedule only applies to children age three and over.

If you need to discuss any of this with an attorney, you can contact the Beal Law Firm attorneys at 817.261.4333 or 214.414.0418 or write us at lawyers@dfwdivorce.com. Our website can be found at www.dfwdivorce.com.

Custody: How does possession work for Firefighters?

A Firefighter can have a custom possession schedule.

When a firefighter is involved in a custody situation, some unique problems arise. Although Texas has a Standard Possession Schedule that is presumed to be reasonable in most circumstances, that type of schedule won’t work for someone working a firefighter’s schedule.

If the parents can agree on a schedule, they can work out whatever they want, but if disagreements arise, it is best to have a court order that will dictate the terms of possession.

In that case, the court can order a Firefighter Possession Schedule that has terms that will help the firefighter actually be able to spend time with his or her child. Some of these terms include the following:

“_______________is employed as a firefighter with the ________________ Fire Department. He/she works 24-hour shifts, beginning and ending at 7:00 a.m., with 48 hours off in between shifts.”

“Due to his/her work schedule, ________________ is not able to exercise periods of possession occurring on the same days of each month.”

“An annual calendar of ___________________ scheduled work days is published in advance of each calendar year.”

“IT IS ORDERED that within seven days of the day that _______________receives his/her work schedule for the following calendar year, _________________ shall provide a true and correct copy of such schedule to ___________________ via email.”

“In each instance in which the work shift of __________________ ends on a Friday, then he/she shall have the right to possession of the child beginning at the time the child’s school is regularly dismissed on the Friday on which his shift ends and ending at 8:00 P.M. on the following Saturday.”

“In each instance in which the work shift of __________________ ends on a Saturday, then he/she shall have the right to possession of the child beginning at 9:00 a.m. on the Saturday on which his shift ends and ending at 8:00 P.M. on the following Sunday.”

“In each instance in which the work shift of _________________ ends on a Monday, Tuesday, Wednesday or Thursday, then he/she shall have the right to possession of the child beginning at the time the child’s school is regularly dismissed on the day on which his shift ends and ending at the time the child’s school resumes the following day.”

In addition to these, there can be other custom terms to detail how possession will work during the summer and on holidays.

One thing to remember, however, is that a court is not required to give a firefighter any sort of custom provisions, let alone ones that the firefighter believes would be best. All of this is negotiable during a divorce or custody case. If the parties don’t settle, and leave it to the judge to decide, they may end up with a schedule that is better or worse than the one they could have gotten by agreement.

To speak with the attorneys of the Beal Law Firm about your unique situation, you can call us at 817.261.4333 or 214.414.0418, or write to us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

A New Judge for the 360th District Court

Does it matter who the Judge is?

As of January 1, 2017, the Judge of the 360th District Court in Tarrant County, Texas is the Honorable Patricia Bennett. Judge Bennett replaces Judge Michael Sinha, who had been the Judge of the 360th and, the prior to that, the Associate Judge of the 360th for years.

Judge Bennett has chosen Matt Riek to be her Associate Judge, and Judge Riek will take the bench on or about January 16, 2017. Judge Riek replaces Judge Cynthia Mendoza.

Both Judge Bennett and Judge Riek are Board Certified in Family Law by the Texas Board of Legal Specialization, and each has years of experience in divorce, custody, and family law. Additionally, Judge Riek was one of the most sought after and well-respected family law mediators in the Dallas-Fort Worth Metroplex prior to agreeing to accept the position of Associate Judge.

So, with these changes, one might ask: Does it matter who the Judge is?

The short answer, particularly in Family Law is Yes!!!

Family law – meaning divorce, custody, grandparent rights, child support, spousal support, alimony, etc. – is an area of the law that, unlike most areas, is governed by the “discretion of the court.” Under Texas law, the trial court judge has wide discretion in determining a number of items in family law. What that means in simple terms is that you are not entitled to have a jury make the decision, it has to be the judge, and your chances of getting an appellate court to overturn the trial court’s decision are extremely small.

Some of the things that a family court judge gets to decide with little chance of being overturned are:

  1. How the property will be divided in a divorce – Will the property be divided 50/50 or 60/40 or 80/20 or in some other ratio?
  2. What happens to the property in a divorce – Do you get to keep the house? Or does your soon-to-be Ex? Or is there a Court Order to sell it?
  3. Who gets to live in the house while the case is pending?
  4. Who has to pay which bills while the case is pending?
  5. Who gets custody of the children while the case is pending?
  6. How much child support will be paid and by whom to whom?
  7. How much temporary spousal support will be paid, if any, while the case is pending – even if it’s for years – and by whom, to whom?
  8. Does anyone deserve Spousal Maintenance – the Texas version of court-ordered alimony – and if so how much and for how long, within some limits?
  9. What will the rights and duties be with respect to the children? Do you have a say in who the children’s doctor is? Dentist is? Surgeon is? Will there be surgery? Will the children go to a psychiatrist?
  10. On what days and at what times will you be allowed to see your children?
  11. Will you be able to Facetime with your children? Call them? Email them?

These are just a few of the things that family court judges get to decide, and as long as that Judge stays on the bench and as long as the children stay in the county, the same judge will keep deciding these issues regarding your children until they age out of the system.

So what do you think? Does it matter who the judge of your court is?

Christmas Gifts: What happens to them if a divorce comes along?

The holidays are a time for gift-giving. For those going through a divorce at this time of year, the consideration of gifts is especially important.

That’s because, in Texas, all property owned at the time of divorce, including any gifts, must be classified as either separate or community property.

Community property is jointly owned by the married couple and divisible by the judge at the time of divorce. Separate property, however, is not. The court cannot take away separate property in a divorce.

  1. Gifts do not fall under the community presumption.

The general rule is that all property received during a marriage is community property. Gifts, however, are one of the few exceptions. Unlike most property received, gifts are classified as separate property.

  1. The community estate cannot receive a gift.

A gift cannot be given to the community. If the gift is to one spouse or the other, it is the separate property of that spouse. If the gift is made to a married couple, the property is one-half the separate property of each spouse.

  1. Income from a gift belongs to the community estate – usually.

If a gift is received that generates income, even though the gift is separate property, the income generated from the gift is community property. So although a divorce court cannot take away the gift, it can divide and take away some or all of the income. Income includes interest, dividends, and rental income.

  1. A gift from one spouse to the other includes the income – probably

The rule stated above in #3 does change a little bit when it is one spouse giving something to the other. According to the Texas Family Code, Section 3.005, “If one spouse makes a gift of property to the other spouse, the gift is presumed to include all the income and property that may arise from that property.” The presumption can be challenged, however, so if you are giving something to your spouse that you want to not follow the presumption, you need to make sure that you have some written evidence of your actual intent.

To discuss your case with the attorneys of the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Custody and Support: Five Simple Answers for Christmas Related Questions

But what if…

  1. Can I count the Christmas presents that I buy as child support?

No.

Generally speaking, court-ordered child support can only be discharged according to the terms dictated in the order. In fact, most orders contain a warning that says:

                No Credit for Informal Payments

                IT IS ORDERED that the child support as prescribed in this decree shall be exclusively discharged in the manner ordered and that any direct payments made by ______________ to ______________ or any expenditures incurred by ________________ during his/her periods of possession of or access to the child, as prescribed in this decree, for food, clothing, gifts, travel, shelter, or entertainment are deemed in addition to and not in lieu of the support ordered in this decree.

  1. If my ex agrees that I don’t have to pay all of my child support this month because I will be buying Christmas presents, is that true?

No.

In 1991, the Texas Supreme Court determined that the Family Code prohibited parents from making agreements to “modify court-ordered child support without court approval.”

Meaning that any agreements with your ex regarding child support, even if in writing, are unenforceable.

  1. If my ex does not let me have the children like he/she is supposed to for Christmas, can I withhold child support?

No.

A standard warning that is to be included in all support orders is as follows:

REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

So, regardless of whether the denial of access is a few minutes or the entirety of Christmas vacation, court ordered child support is still due. Whether the court will later put your ex in jail and give you make-up time is another matter for another day.

  1. If my ex is behind on child support, do I still have to give him/her the children for the Christmas possession?

Yes.

Another standard warning that should be in all orders is:

FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. 

So, regardless of whether your ex is ten payments behind in child support, one payment behind, or just late with this month’s payment, the court ordered possession is to be allowed. Note, however, that unlike child support, possession can be informally modified by the parties.

  1. If my court order does not contain all of the warnings discussed in this blog, is the answer different for me?

No.

These warnings simply state the law. And the law is the same, whether you have been warned or not.

To discuss any of this with the attorneys at the Beal Law Firm, call us at 214.414.0418 or 817.261.4333, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com.

What does the Texas Family Code say about Christmas?

’tis the season to review your Court Order and make sure you know that you’re supposed to do.

The Texas Family Code Standard Possession Schedule is designed such that the parents are supposed to divide the major holidays of Thanksgiving and Christmas.

Thanksgiving is handled by alternating years, and Christmas is handled by dividing the Christmas Break and then alternating which parent has the first part and which has the second part. By doing it that way, each parent should get the children on every other Christmas Day.

If the parents have a Court Order, either because of a divorce or custody case, the Court Order dictates the terms of possession. The Standard Possession Order may have been made a part of the order, or there may be a custom or modified schedule.

The Standard Possession Order (“SPO”) provides, in part, as follows:

Sec. 153.314.  HOLIDAY POSSESSION UNAFFECTED BY DISTANCE PARENTS RESIDE APART.  The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart.  The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

(1)  the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;

(2)  the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;

This section is an antiquated part of the Family Code because it contemplates that one of the parents is named a Possessory Conservator. The Texas Legislature simply has not cleaned up this portion of the code, such that it matches modern terminology.

These days, there is a presumption that both parents will be named as Joint Managing Conservators (“JMC”)— and most are.

If both parents are named as JMC, then the provisions of the code that detail the possession of the Possessory Conservator are applied to whichever JMC is the Non-Primary Conservator — that is, whichever parent does not have the right to establish the primary residence of the children.

In considering the SPO, keep in mind that there is also the “expanded” or “extended” SPO. With respect to Christmas, the Family Code Sections dealing with Christmas state, in part:

Sec. 153.317.  ALTERNATIVE BEGINNING AND ENDING POSSESSION TIMES.  (a)  If elected by a conservator, the court shall alter the standard possession order . . . to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:

…

(4)  for Christmas school vacation periods of possession under Section 153.314(1), beginning at the time the child’s school is dismissed for the vacation;

As stated above, however, the terms of the SPO are irrelevant if a parent has a Court Order that differs from it. The terms of the Court Order must be followed, unless the parents agree on a case by case basis to something different. If there is such an agreed variation, it is best to memorialize the agreement in writing, so that there is no misunderstanding later.

Some parents — either in a modified order or an agreed variation — agree to exchange the children on Christmas Eve, Christmas Day, or December 26th. Interestingly, before 2007, the SPO dictated that exchanges would happen on December 26th, instead of the 28th.

When contemplating a custom possession order, modified SPO, or agreed variation, it is important to think through the following:

  1. What will we do next year? And the following years?
  2. How will this affect the rest of the schedule? For example, if we are doing a week-on, week-off schedule, will this throw off the rest of the schedule, and how are we going to adjust it?
  3. What will this do to our ability to travel during the holidays to see family or for fun? For example, while it may sound like a good idea when children are very young to set up a schedule that provides for exchanges on Christmas Day, doing so will prevent the parties from ever being able to travel very far to see family on Christmas Day, without having to get a agreed variation or going back to court for a modification of the order — neither one of which is certain.

To discuss your situation with one of the attorneys at the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

The Importance of Filing First

Being the first to file can give you advantages, regardless of how your divorce, custody, or other family law case proceeds.

If you know you’re about to be in a fight, hit first.

That advice works well on the playground, in a bar, or just about anywhere else you find yourself. It is especially true in the world of litigation, including divorce, custody and just about every other type of family law.

To understand why being the first to file matters, it is important to understand a little bit about the rules of the game you are in.

Texas family law cases are like all other civil litigation. They are governed by the Texas Rules of Civil Procedure.

Under the Rules of Civil Procedure, the party filing first is called a Plaintiff or Petitioner. The other party is the Defendant or Respondent. In family law cases – divorce, custody, modification, child support, enforcement, etc. – the terms Petitioner and Respondent are used.

The Petitioner gets a tremendous number of advantages, if the case goes to trial. The Petitioner gets to conduct his or her portion of Voir Dire (Jury Selection) first. The petitioner gets to make his or her Opening Statement first. The petitioner gets to put on his or her Case-in-Chief first, and when it comes to Closing Argument, the Petitioner gets to speak both first and last.

These advantages are huge. Why? Think about it. When you were a child and in an argument with a brother, sister, or another child, didn’t you want to get your story out to mom or dad first? Why do people interrupt each other when arguing a point to a third party? Because everyone understands the advantage of trying to convince the arbiter of the logic and correctness of his or her point, before the opponent gets a chance to sway the decision maker.

That’s exactly why the rules are in the Rules of Civil Procedure. They are intended to give an advantage. It is understood that the one going first has an easier time of persuasion. And the Rules give the Petitioner this advantage, because the rules were designed primarily for cases in which the filing party is a Plaintiff, such as a car wreck or breach of contract case.

In those cases, the Plaintiff has the procedural advantages provided by going first, because he or she has the burden of proof.

In many family law cases, however, the parties have essentially the same burden. Both are trying to convince the judge that their proposed division of property is fairer than the other side’s proposed division, and/or they are trying to convince the judge or jury that their proposal for the children is more in the best interest of the children than the other sides proposal.

But what if you don’t plan to go to trial? Most people don’t. The reality is that there is no way of knowing at the beginning of a case whether you will go to trial or not.

There are only two ways to finish the case – settlement or trial. To settle, both people have to agree. If the parties cannot agree, there will have to be a trial.

But what if you absolutely believe that you know there will not be a trial? Unless you are one of the incredibly rare people that have complete agreement from the outset, you will still be negotiating something. In that case, being the one that holds the advantage that would be present if you went to trial gives you an advantage in the negotiation.

Finally, remember that even if you believe that none of this applies to you, the case is going to have to be filed at some point by somebody – assuming that the case is going to happen – so it may as well be you. Nothing about this post should be taken as a comment on how to file. That is a topic for a future post, but as a prelude: be aware that there are very non-threatening and amicable ways to file.

Additionally, nothing in this post should be taken as encouraging any case. As the saying goes, “the two worst days of my life were the day I went to court and lost and the day I went to court and won.” Being in a lawsuit of any kind is an emotionally and financially draining proposition – if you can stay out of litigation, do.

But this post ends as it started – if you know you’re about to be in a fight… And litigation, even if amicable, is a form of fighting.

If you need to discuss any of this with the attorneys of the Beal Law Firm call us at 817.261.4333, 214.414.0418, or write to us at lawyers@dfwdivorce.com. Beal Law Firm is www.dfwdivorce.com.

The Many Parts of a Texas Divorce

In a previous post, we discussed the procedural parts of a Texas Divorce. In this post, the goal is to identify the substantive parts of a Texas Divorce.

Divorces are interesting types of cases, because unlike most cases, they have discrete parts, each of which needs their own jurisdictional analysis. That is, a court may have the power to deal with one part of the case, but not with another.

Not all cases are the same, so some of these parts may not be present in your case, but since there is a great deal of misunderstanding about how divorces work, it is a good idea to at least be aware of them, to be sure that they don’t belong in your case.

1. The Status of the Marriage

The Status of the Marriage is both the most important and least important part of the case – it is the judicial determination of whether the parties are divorced. As long as one or both parties is a resident of Texas, the court generally has the power to make this determination. Since Texas is a “no-fault” State, the court can grant the divorce without reference to either party being at fault. But, either or both parties can allege that the divorce should be granted on “fault” grounds, such as adultery or cruelty.

2. Division of Property

This part of the case involves how the marital estate is divided. The court does not have the power to take either party’s separate property as a part of the division of property. The court does have the power to divide the community estate, as long as the court has personal jurisdiction over the parties. Understanding personal jurisdiction can be tricky, so if either party does not reside in Texas, it is important to get competent legal advice on this topic.

As a part of the division of property, the court may assign the payment of debts, but it is important to note that the court cannot adversely affect the rights of third-party creditors. That is, if the creditor could sue you before the divorce if the debt was not paid, then the creditor will be able to sue you after the marriage if the debt is not paid – there is nothing you can agree to or that the court can order that can change that.

3. Custody

Custody is a legal word with a fuzzy definition. Basically, if there has been a child born or adopted during the marriage that is still a minor or disabled, or both, the court will need to deal with issues of conservatorship, geographic restriction, rights, duties, and possession of the child.

There are a great many presumptions that aid in the predictability of this section, but unlike property division, a jury can be used to decide the ultimate issues of custody, i.e. Primary Conservatorship and Geographic Restriction.

The analysis of whether the Court has the power to issue a valid, binding custody order can be very confusing. The answers are found in a complicated piece of legislation known as the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”).

4. Child Support

Although often even courts treat Child Support as though it is a simple mathematical analysis, under the family code it is not. The statutory presumption is that guideline child support should be used, but there are a great many other factors that the court should consider.

See this previous post for a discussion of those other factors.

5. Spousal Maintenance

Texas has had contractual alimony available for a long time, if not forever. Contractual alimony, however, is only obtained when one party or the other agrees to provide cash flow to the other after divorce.

Spousal Maintenance is the term that is used for the type of post-divorce, non-child-support, non-property division payments that the court can order over the objection of the soon-to-be-paying party. In order to get Spousal Maintenance, the party seeking it must prove a great many things, but the starting point is that he or she must fit in one of three categories:

  1. Be disabled;
  2. Be the victim of domestic abuse; or
  3. Be married for over ten years and not be able to provide for his or her minimum reasonable needs.

6.Tort or Other Cause of Action Against Your Spouse

Although many people don’t realize it, you can sue your spouse, in addition to divorcing him or her. To do so successfully, there must be a valid cause of action. That is, the spouse must have done something that amounts to a Tort or other type of cause of action.

Viable causes of action include assault, battery, false imprisonment, breach of fiduciary duty, and intentional infliction of emotional distress (also known as intentional infliction of mental anguish).

Whether one spouse should sue the other is a very complicated question, and competent legal advice is critical in making a decision on how to proceed.

To discuss your case with the attorneys of the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Divorce and Custody: Five Military Family Law Quick Hits for Veteran’s Day

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:

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.

To discuss your situation with the attorneys of the Beal Law Firm, contact us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com.

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