Q: Can Texas calculate military retired pay as if the marriage ended on the date of separation, years before divorce?
A Texas judge signed a final decree in 2023, ending the community property portion as of 2019, the date of separation. The decree calculated and divided the servicemember's High 3 and years of service as if the marriage had ended in 2019. Post trial, the judge writes a letter denying that this language meant he treated the remaining retired pay as separate property. The judge awarded each party 50% of whatever accrued between the date of marriage and date of separation, where a military pension does not accrue as it does not exist until 20 years are served. During the trial, the judge did not mention or address the remaining undivided portion including classification or award. All post trial objections were sustained, including preemption of federal law. This was a discretionary award in a no fault divorce. No case law found to support this division.
The community portion of military retirement pay is that portion which accrues during the existence of the marriage, i.e. from the date of marriage to the date of divorce. Any portion that accrued outside of the existence of the marriage is the servicemember's separate property.
However, a divorce court is not obligated to divide the community portion of military retirement pay in kind equally 50-50. The divisions of community property must be "just and right." It sounds to me like the court determined that the servicemember is entitled to that part of the community portion of his/her own military retirement that accrued from the date of separation to the date of divorce, and that the spouses should split that part of the community portion that accrued from the date of marriage through the date of separation as part of the court's "just and right" division of their community property.
A military pension DOES in fact accrue during the period of a servicemember's service in the armed forces but it does not VEST unless and until the servicemember has served 20 years. The DoD is very familiar with these types of calculations and does them all the time for both the old High 36 and current BRC plans. I don't see a valid federal preemption argument in the context of this question.
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