clarification of retirement division

[wldcherry1]

Soc,  appreciate you patience while I continue to look at this issue at every angle I can think of.

TX law states the following when computing division of retirement pay:

(2) How to compute the division: Texas courts will divide only the community interest in the retirement pay. The following formula is used to compute the community interest:

months of military service during the marriage ¸ total months of military service at retirement = percentage of retirement subject to division (community interest)

The community interest is subject to just and right division by the court-- which does not require equal division. However, for purposes of illustration, the following examples assume the community interest is being divided equally, so the community interest is multiplied by one-half.

(a) Lt Col A joined the service in 1967 and married Mrs. A in 1973. The couple was divorced six years (72 months) later. Lt Col A retires in 1987 after 20 years (240 months) of service. Thus, the six years of marriage are divided by the 20 years of military service because all of the marriage was concurrent with the military service.

1/2 x 72/240 = 72/480 = 15%

Thus, the former Mrs. A is entitled to 15 percent of the present value of Lt Col A's retirement if the court divides the community interest equally.

Paul and Jane were married for 110 months and Jane was in the military for 260 months. Nothing in the decree states about when to calculate the value.  For example rank at divorce or at retirement or 20 years (first retirement eligibility) or actual time served.

Under the marital estate of Paul and Janes decree it states that Paul is entitled to 27.38% of Jane's military retirement.  Now the example assumes the community portion is divided in half.  

1.  Based on TX case law Jane thinks that the math should go like this.  Do you agree?

27.38% X 110/260 = 11.58%

2.  Do you agree that a clarification order is necessary to determine the value of retirement?  ie Rank at divorce or retirement and 20 years or actual time served?

As always thanks.

[socrateaser]

>1.  Based on TX case law Jane thinks that the math should go
>like this.  Do you agree?

As you stated, under TX law "The community interest is subject to just and right division by the court." This indicates that the court has authority to ignore the guideline formula and do what it believes is equitable under the particular facts of a case. An decree exists that grants 27.38%. The court used its discretion to make a judgment, that judgment was never appealled, and absent some legal or equitable theory on which to set aside the decree, it makes no difference what you might choose to argue were there no decree in place, because there IS a decree. Therefore, the amount of property awarded is EXACTLY what the decree states, i.e. 27.38% of the military retirement.

>2.  Do you agree that a clarification order is necessary to
>determine the value of retirement?  ie Rank at divorce or
>retirement and 20 years or actual time served?

The only clarification I would seek would be as to just how much of the accrued military retirement benefit is being awarded in the decree, i.e., 27.38% of the retirement benefit accrued during the marriage, or the total amount of benefits accrued throughout the primary beneficiary's entire military service, regardless of the marriage's termination date.

If the court were to state the latter, then I would submit that this decree, unless it was originally stipulated to, is against public policy, because it is effectively awarding permanent spousal support, which under TX law, is unlawful.

But, if the decree was stipulated, then the retirement beneficiary is SOL.