Full question:
After eighteen years of marriage (she is retired military), I am ready for a divorce. My question is as the husband (I am on disability) am I able to receive a portion of her retirement pay and am I obligated to help her refinance our home?
- Category: Divorce
- Subcategory: Property Settlements
- Date:
- State: Texas
Answer:
In Texas, on the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. There are also fault grounds for divorce. These are grounds for which one of the parties is at fault for the divorce proceeding. The fault grounds are as follows:
a. CRUELTY
b. ADULTERY
c. CONVICTION OF FELONY (at least 1 year in prison)
d. ABANDONMENT
e. LIVING APART (for at least 3 years)
f. CONFINEMENT IN MENTAL HOSPITAL (for at least 3 years)
Texas is a so-called "equitable distribution" state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in dividing property.
Along with the normal Texas property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
The USFSPA does not automatically give a former spouse any of the memberÂ’s retired pay. Rather, the law permits a state to treat military disposable retired pay as marital property and therefore divide it in a divorce action. Disposable military retired pay is a service memberÂ’s monthly retired pay minus qualified deductions. USFSPA allows the local court to treat military retired pay just as it would treat a civilian pension plan. Retired pay may be divided for property settlement purposes. Retired pay may also be garnished to satisfy child support and alimony obligations. Whether military retired pay will be treated as marital property and how the servicemember's military retired pay will be divided between the two parties upon divorce is decided according to state law. Maryland, Virginia and District of Columbia courts have treated a service member's military retired pay as a marital asset which can be divided in a divorce action.
Under the USFSPA, a former spouse, like a current spouse, can be designated as a Survivor Benefit Plan beneficiary. Survivor Benefit Plan (SBP) is an annuity that allows retired service members to provide continued income to a named beneficiary in the event of the retiree's death. A retiring servicemember will be enrolled in the SBP unless he or she declines to participate. If divorce occurs after retirement and the servicemember had initially elected to participate when retiring, the divorce terminates the initial beneficiary designation in favor of the "spouse." However, coverage may be continued in favor of a "former spouse" either voluntarily, to honor an agreement between the parties, or to comply with a court order. The former spouse however, must elect "former spouse coverage" from the appropriate military finance center within one year of the date of the final divorce decree.
The USFSPA also permits former spouses to continue receiving commissary, exchange, and health care benefits after a divorce in certain cases. In order to qualify for continued benefits a former spouse must show that the service member served at least 20 years of creditable service, that the marriage lasted at least 20 years and that the period of the marriage overlapped the period of service by at least 20 years. A former spouse who meets these requirements is known as a 20/20/20 former spouse and is entitled to full commissary, exchange and health care benefits. These benefits include TRICARE and inpatient and out-patient care at a military treatment facility. Former spouses who do not meet these requirements lose their commissary and exchange privileges once the divorce is final.
In cases where the servicemember served 20 years of creditable service, the marriage lasted 20 years, but the period of the marriage overlapped the period of service by only 15 years the former spouse is entitled to full military medical benefits only for a transitional period of one year following the divorce. After this year of coverage, the spouse may purchase a DOD-negotiated conversion health policy. Full coverage also requires that the former spouse does not remarry nor enroll in an employer-sponsored health insurance plan. Former spouses who are neither 20/20/20 nor 20/20/15 former spouses are not entitled to any military health benefits after a divorce. But they are eligible for the DOD Continued Health Care Benefit Program, a premium based temporary health care coverage program for 36 months of coverage until alternative coverage can be obtained, if they enroll within 60 days of losing full military health care benefits.
If you and your spouse agree that the marital home will become her property at the time of divorce, you would have to transfer your title to her by deed and you may be compensated for your interest. Many times that is when the spouse who receives the home will refinance in order to "buy out" the other spouse.
The former spouse would not be obligated to assist with obtaining that loan.
If she is seeking to re-finance the house while you are still married, absent a court order to the contrary, you would not be required to assist her in securing a new loan. But you would want to be sure that the new debt is treated separately from your joint debt when you are splitting assets and debts in the divorce proceeding.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
