Fort Worth Military Divorce Attorney

In most military divorce cases, spouses may have multiple options for where to file. These include:

• The state where the service member is stationed, even if this is not their legal residence
• The state where the service member claims legal residence (domicile)
• The state where the non-military spouse resides

While this flexibility offers advantages, it can also create complications. Depending on state laws, choosing the right jurisdiction can impact property division, spousal support, and custody arrangements.

Why Does Jurisdiction Matter?

The state in which you file for divorce will affect the following:

• How your marital property will be divided
• What the custody, visitation and child support terms will be
• How military benefits will be handled
• What court will have the authority to issue custody orders and the amount of child support that will be paid
• What protections are available under state and/or federal law

Choosing the wrong jurisdiction may result in delays or the loss of certain legal advantages. While this jurisdiction gives the filing spouse the right to file, it does not necessarily mean that the court will have jurisdiction over the children or property if the other spouse has no connection to the state. At Melone Hatley, P.C., we can help you evaluate all available options and choose the jurisdiction that best protects your interests.

Texas Residency Requirements for Military Members

Under Texas law, active-duty military members stationed in Texas can be considered residents for divorce purposes even if their home of record is in another state. Specifically,

• A service member is considered a Texas resident if they have been stationed at a military installation in Texas for at least six months and in a specific county for at least 90 days.
• Their spouse may also qualify to file in Texas under these residency rules, even if they moved to the area only to join them.

Grounds for divorce in both civilian and military divorces are state-specific, depending on the jurisdiction. Texas recognizes both no-fault and fault-based divorces.

No-Fault Divorce

In Texas, the only grounds for a no-fault divorce is insupportability. This means the marriage is no longer supportable due to conflict, and there is no expectation of reconciliation.

Fault-Based Divorce

When one spouse’s misconduct causes the breakdown of the marriage, grounds for divorce can be fault-based. In Texas, these grounds are

• Cruelty
• Adultery
• Felony conviction
• Abandonment
• Living apart for three years
• Confinement in a mental institution

Even in no-fault divorces, courts may still consider marital misconduct in decisions concerning spousal maintenance, property division, or child custody.

Divorce can add legal complications that can be difficult for service members to manage during times of deployment or active duty assignments. The Servicemembers Civil Relief Act (SCRA) provides legal protections to ensure service members are not unfairly disadvantaged in civil court proceedings, including divorce.

The SCRA is a federal law that offers the following protections as they apply to divorce cases:

• Postponement of proceedings
  If active duty and military obligations prevent a service member from appearing in court or responding to filings, they can request a temporary delay of proceedings.
• Protection from default judgments
  If a service member cannot respond to divorce paperwork because of their military duty, the court cannot issue a default judgment in the other spouse’s favor.
• Setting aside judgments
  If a divorce decree or court order is issued during active military duty, the service member can petition to reopen the case.

Dividing marital property in a Texas military divorce involves both state community property laws and federal laws that apply specifically to military benefits. Service members and spouses must understand how these two systems interact during a divorce.

Texas is a Community Property State

In Texas, property acquired during a marriage is presumed to be community property, meaning that it belongs to both spouses regardless of whose name is on the title or who earned the income.

This includes:

• Military salary and bonuses earned during the marriage
• Special and incentive pay earned during the marriage
• Retirement contributions
• Real estate, vehicles, and other major assets
• Debts acquired during the marriage

Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) help support the household during the marriage. While Texas courts cannot divide these as marital property, they may consider their value when dividing assets or determining child or spousal support.

Separate property, or assets owned before the marriage, gifts, inheritances or personal injury settlements, are not subject to division.

Just and Right Does Not Necessarily Mean Equal

While community property is often presumed to be divided 50/50, Texas can make an unequal division determination if it is found to be “just and right.” Courts may consider the following in community property division decisions:

• The length of the marriage
• The age and health of each spouse
• Each spouse’s earning capacity and employment status
• Fault in the breakup of the marriage (if relevant)
• Whether one spouse supported the other’s military career
• Custody of the children and the need for the marital home

Military divorces often involve complex documentation, retirement benefit estimates, and service records. The knowledgeable military divorce attorneys at Melone Hatley, P.C. are well-versed in analyzing this information and working with military finance offices to ensure all marital assets are properly accounted for and fairly divided.

Military Retirement and the USFSPA

A significant asset in a military divorce is the service member’s retirement pay earned during the marriage.

Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), Texas courts are allowed to treat military retirement pay as divisible community property. Key points to consider in this division are:

• The 10/10 Rule (the couple was married for 10 years, overlapping with 10 years of military service) allows the Defense Finance Accounting Service (DFAS) to pay the non-military spouse directly.
• If the 10/10 threshold has not been met, the non-military spouse may still be awarded a portion of the benefits, but they must come directly from the service member.
• Courts have discretion to award up to 50% of the disposable retired pay to the former spouse, depending on how long the marriage overlapped with military service.

While military retirement pensions are considered marital property subject to division in a Texas divorce, military disability benefits are not. However, disability benefits can be considered income when determining child support or spousal maintenance awards.

Other Military Benefits

While Texas courts cannot divide or award certain federal benefits, they may still affect negotiations or be considered in support arrangements. These include

• VA disability compensation
  While not divisible in divorce, courts may consider it when determining child or spousal support. It will also be important to discern whether the VA disability compensation is service-connected or non-service-connected.
• Survivor Benefit Plan (SBP)
  A former spouse may be awarded continued SBP coverage through a divorce decree to ensure they receive payments after the service member’s death.
• Thrift Savings Plan (TSP)
  This retirement savings plan is divisible like any other 401(k)-type account.
• Housing and Subsistence Allowances
  While not technically divisible, they may affect support and property division decisions.

When military spouses divorce, child custody can become a legally challenging issue, especially when military duties involve relocations, deployment, or unpredictable schedules.

Texas uses the term “conservatorship” rather than “custody.” In most cases, courts presume that joint managing conservatorship – where both parents share decision-making rights – is in the child’s best interest. However, one parent is typically granted the right to determine the child’s primary residence.

Military status alone cannot be used as the sole reason to deny a service member custody or decision-making rights, but the court will carefully examine how a parent’s military duties may affect their ability to provide a stable and consistent home. Texas Family Codes § 153.702 – § 153.709 offer special protections for military parents, including

• Expedited hearings before deployment
• Temporary orders that revert to the original agreement upon the service member’s return
• The right to designate a substitute conservator during deployment
• Restrictions on modifying custody permanently while a parent is deployed

These laws aim to prevent a parent from losing custody rights simply because they are serving their country.

In addition to military retirement pay and standard marital assets, a military divorce may also involve a variety of other military-related spousal benefits. These are governed by both federal and Texas state laws, and not all are automatically granted. Service members or spouses should understand how these benefits are handled in a divorce.

Survivor Benefit Plan (SBP)

The Survivor Benefit Plan (SBP) us an annuity that provides continued income to a surviving former spouse after a service member’s death. This becomes especially important if the non-military spouse is awarded a share of the military retirement pension. Without the SBP, pension payments stope upon the death of the service member, even if the divorce awarded the former spouse a share of the retirement. The SBP must be specifically addressed in the divorce decree.

TRICARE Health Benefits

TRICARE is the military’s healthcare system. A former spouse may be eligible for continued TRICARE coverage under the 20/20/20 rule that says the couple must have been married 20 years, the service member must have served 20 years, and the marriage and service must have overlapped for at least 20 years.

If the overlap is only 15 years, the 20/20/15 rule says the former spouse may receive TRICARE for one year after the divorce. If neither rule applies, the former spouse may need to secure private health insurance or explore temporary options through CHCBP (Continued Health Care Benefit Program).

Commissary and Exchange Privileges

Similar to TRICARE, commissary and base exchange access is only retained if the 20/20/20 rule is met. Without this, the former spouse loses all on-base privileges after divorce.

Protecting Access to Benefits

Unlike civilian divorces, military divorces involve a complex web of rules that govern the non-military spouse’s access to health coverage, retirement income, and survivor benefits. Simply being married to a military service member doesn’t guarantee continued access after the divorce is finalized. This is why getting the right legal guidance is so important. At Melone Hatley, P.C., our skilled Fort Worth military divorce attorneys help clients identify what benefits they may qualify for and ensure that their divorce paperwork includes the appropriate language required to protect them.