A Military Wife's Rights in a Texas Divorce
By Heather Frances J.D.
Divorce is rarely easy and the unique nature of military life can make a divorce more complicated for military wives. Servicemembers and their spouses must get divorced in state court just as civilians do. Thus, Texas rules apply to military couples divorcing in Texas. However, federal laws provide additional rules for divorces involving military members and their wives.
Residency and Service
To file for divorce in Texas, you or your spouse must live in the state for at least six months and the county where you plan to file for at least 90 days. If you file for divorce, you must serve your spouse with copies of the divorce paperwork before the case can proceed. The Servicemembers Civil Relief Act, a federal law, gives him extra time to respond to the divorce proceedings if his military duty interferes with his ability to defend himself in the divorce case. For example, if he is unable to attend a hearing because he is deployed, he can request a stay, or postponement, of the divorce proceedings. SCRA entitles service members to an automatic 90-day stay, but the judge can extend the stay for longer.
Texas is a community property state, so the court will distribute your property according to community property rules. Generally, courts consider as community property all assets acquired by spouses during the course of marriage -- no matter whose name is on the title to those assets -- except assets acquired by gift or inheritance. For example, if your spouse uses money from his wages to buy a vehicle during your marriage, that vehicle is considered community property, even if your name is not on the title. In Texas, courts divide community property in a manner that is "just and right," which does not necessarily mean equal.
Military Retirement and Benefits
The Uniformed Services Former Spouses Protection Act permits courts to divide a servicemember's retirement pay according to state law, so Texas courts can divide your spouse's military pension even if he is not yet receiving retirement pay. You do not have to be married for any minimum length of time to receive a portion of his military pension. However, to receive direct payments from the Defense Finance and Accounting Service, you must have been married to him for at least 10 years and at least 10 years of your marriage must overlap with his military service. USFSPA also dictates how long you must be married before you can continue to receive military benefits after your divorce. Generally, you must be married for at least 20 years, during which your spouse served at least 20 years, to continue receiving health insurance and other benefits.
Texas follows a percentage of income model for assessing child support, which means Texas courts require the noncustodial parent to pay a certain percentage of his income toward the child's care. Texas law bases the required percentage on the number of children the paying parent supports, from 20 percent for one child to 40 percent for five children. Though Texas courts can deviate from the standard percentages, federal law prohibits states from withholding more than 60 percent of a parent's income for child support. This amount lowers to 50 percent if he supports other dependents.
- Jim K. Jopling: Military and Texas Residency Requirements for Divorce
- MJ Hill & Associates, PLLC: Divorce
- National Conference of State Legislatures: Child Support Guideline Models by State
- Texas Legislature, Texas Constitution and Statutes: Family Code: Title 5: Subtitle B: Chapter 154: Subchapter A
- Military.com: Uniformed Services Former Spouse Protection Overview
- Robins Air Force Base: Child Support Enforcement
- Lasiter & Jackson, PLLC: Servicemembers Civil Relief Act & Divorce
- American Bar Association: A Judge's Guide to the Servicemembers Civil Relief Act; Mark E. Sullivan
- Woods, May and Matlock: FAQs About Divorce
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.