Transcript

Thomas Just: A lot of people don’t understand that just because you invoke the SCRA does not mean that everything’s completely frozen. So we still have to deal with possession of the child.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Thomas Just to the Texas Family Law Insiders podcast. Thomas is an attorney at Bustos Family Law in Austin, Texas. His practice focuses on high conflict divorce and military family law. After September 11, Thomas enlisted in the United States Air Force, and served as a network intelligence analyst with a specialization in National Security Agency cyber warfare operations.

He later went on to complete his undergrad studies at the University of Texas in philosophy and government. And he obtained his JD from Seattle University School of Law. With his military background, he stayed in tune with military issues by sitting on the Austin City Council’s Veterans Commission and lobbying Congress for veteran legislation. In his free time Thomas plays chess competitively, and is working towards achieving the rank and title of FIDE Master. Thank you so much for joining us today.

Thomas: Thank you for having me.

Holly: So why don’t you tell us a little bit about your background.

Thomas: Yeah, so I joined the Air Force right out of high school and spent my formative years in the Air Force. And I specialized in intelligence and started out as a basic intelligence analyst, mostly working for the NSA. And then later, I specialized in cyber warfare operations. But you know, even after I got out and went and did my undergraduate studies, and then law school on the GI Bill, I stayed heavily in contact with the veteran community, and, you know, veteran causes and legislation and lobbying. And, you know, a lot of sort of work within the military community, for creating access to justice, and, you know, legal, free legal work for veterans. And so even outside, you know, sort of gone into family law and I’ve done a lot of that, still, on the side, I do a lot of work for military veterans outside of family law.

Holly: So now you’ve found your way to family law, how would you describe your current practice?

Thomas: So most of my work today is sort of highly complex litigation and high conflict. I don’t really typically like sort of the simple cases, I get bored. So I tend to gravitate towards big and messy. And I have quite a few, you know, active duty military clients, as well as spouses of active duty service members, as well as you know, veterans. So, you know, I really enjoy sort of catering to that particular community.

Holly: So that’s kind of what we’re going to be talking about today is are the military family law issues. I think most family lawyers that do not have a military background are terrified of this area, if they know enough that they should be terrified, or just completely oblivious to the fact that there are unique issues when we’re dealing with service members or veterans that we need to keep in mind in our family law cases. So today, we’re going to kind of chat about those issues, see if we can help family lawyers get some level of understanding and maybe also understand when they need to be sending these military folks to an expert.

Thomas: Yeah, I think, you know, the first thing is that what makes it most difficult for a lot of family lawyers when it comes to dealing with particularly active duty servicemembers is they don’t know what they don’t know. And there are all sorts of pitfalls, that a normal family lawyer would look at a particular issue and think that it was innocuous and not realize that you’re walking down a very dangerous path with a, you know, active duty service member. So for example, you never want to go down the adultery pathway. You know, unless you’re really thought it through because, you know, if you accuse a service member of adultery, you need to realize that that is a crime under the Uniform Code of Military Justice.

And they can and they will be prosecuted for it. So you oftentimes in court need shut that down. Any questioning, you know, going into those waters. But that’s just, that’s just, you know, a small example of, you know, a lot of different issues that you need to be aware of that, you know, most of us doing sort of normal family law cases wouldn’t think much about. So, you know, that’s one particular example. But you know, in addition to that, you know, you have quite a bit of federal laws that come into play here. And you need to be aware of those.

So, for example, there’s the Servicemembers Civil Relief Act, which, you know, has a lot to do with, you know, what happens when a service member gets deployed, and there’s a, there’s an active case going on. So, if you don’t understand what to do in that situation, and how to invoke the SCRA, that’s one of the easiest ways to patch agreements. And so, you know, the first thing that you need to do is sort of go through that, read through that, and understand, okay, I need to invoke the SCRA, which means I have to go through all the steps to essentially freeze the case.

And there’s all these steps that you’d have to go through, including providing the court with, you know, the deployment orders, a statement from their commander that they’re, you know, unable to participate in the case. Now, normally, you know, the statute that says it’s supposed to be six months, you know, and you’re supposed to come back for, you know, a renewal of that, or an extension. A lot of judges will give you more than that, if you ask for it, because most appointments are not going to be you know, 60 days. Most appointments are going to be six months. So at a minimum.

But those are, those are things that, you know, happen. But also, you know, a lot of people don’t understand that just because you invoke the SCRA does not mean that everything’s completely frozen. So we still have to deal with possession of the child. So what happens when the SCRA is invoked? Well, the court still needs to decide who’s going to possess a child. Who has rights to possess the child. And that gets especially sticky if, you know, maybe, maybe the other parent doesn’t have complete possession or is an unfit parent. Then you have, you know, potential other family members or you have CPS involved.

And so you have to still have those hearings, even though, the service member is deployed. And so, you know, that all gets very tricky. And you need to make sure that you’re still complying with the SCRA in those contexts. So there’s all these different issues that you need to be aware of. And the other thing is that, outside of that, you have the military pension. Right. And so you have a whole extra set of laws there. And I think we’ll we’ll get to that later on.

But you know, another example is you have a series of administrative issues within the Department of Defense that most family law lawyers are simply not used to dealing with. And it’s a whole different set of documents that most family lawyers are not used to reading, let alone knowing what they are. Things like, you know, an LES, a leave and earning statement. And you need to you need to know how to read that. Because that’s going to tell you a lot. It’s going to tell you what their what their rank is, what their pay is.

There’s all sorts of different kinds of pay, right? So you need to know what you know what a base pay is. But a BAH is which is based allowance for housing. What a BAS is, base allowance for subsistence. And while we’re on BAH and BAS, one of the other things you need to know is there are quite a few fraudulent marriages based on BAH. So what happens is, is that there are a lot of young, lower ranked individuals who, when you’re, when you’re at that rank, you’re required to live on base, which means you don’t get BAH or BAS.

So what a lot of them, what sometimes happens is they will decide to get married simply for the BAH and BAS, they’re not actually agreeing to, it’s not a real marriage. And so they will get married and they will move off base simply for the BAH and BAS but they’re dating other people. Or you know, or maybe they’re not even dating other people. But in any case, this isn’t a real marriage. And if the military finds that out, that can, will be prosecuted. So that’s another issue that you need to be aware of.

Holly: So, you know, kind of backing up to the beginning. When somebody, a potential new client walks into our office, and we are aware that there is an active duty military party. I know that there are unique venue issues when you have a military party. Can you tell us a little bit about that?

Thomas: Yeah, so you’re gonna, you’re gonna have some issues there. Oftentimes there leads to intrastate venue fights. So there was recently a case from last year, where a Texas district court and a court in Colorado, both claimed jurisdiction over the child, and, you know, both cases, were proceeding simultaneously, and they were both issuing contradictory orders. And so, you know, the, the issue becomes, how do you sort of establish domicile because it gets really tricky with, you know, military members being on, you know, temporary duty assignments, or, you know, being on permanent change of station.

Because what happens is, is that, typically, you know, military members get what are called PCS orders, or permanent change of station orders. Depending on their job and branch, typically every either two years or four years, depending. And so, you know, they get those, but even then, they don’t necessarily change the residency in that case. The residency is they will maintain the residency sometimes in their original home state where they where they joined from sometimes. But the analysis gets tricky, because the child’s here for that long. And so you can sometimes, you know, argue to the court that the court should take jurisdiction, because the child’s been here for a number of years in that case.

But also what happens when, you know, maybe that’s not a PCS analysis, what if you know, the service member here is on TDY orders, right? And so, TDY orders are temporary duty assignment orders. And so in that case, you can have orders that are, you know, sometimes quite long, you know, maybe six months, maybe eight months, maybe a year, right? You can have those, those kinds of orders. They’re now the permanent base is somewhere outside of Texas, but they’re TDY orders are here in Texas somewhere.

You can you can have a analysis there that says, well, hey, you meet the six month to 90 day rule. So, you know, we should be able to claim jurisdiction. And so you’re, you’re gonna have a lot of, you know, those venue issues. And not only that, you’re gonna have those venue issues also pop up when it comes to the pension as well, because there are issues when it comes to uniformed services former spouse protection act. Where that act outlines that in order for the state to exercise jurisdiction, you know, couple of things have to be true. You know, well, at least one of the following has to be true.

Either the state is the service member’s domicile, or the service member consents, or the service member resides there for reasons other than military assignment. There, you can obviously try to, you know, argue, make arguments as to you know, why any of those are true, but those are roadblocks that the service member can put up as to why the state can’t exercise jurisdiction over the military pension division. So those are those are issues that you need to be aware of.

Holly: So we mentioned a couple of times about military pensions, kind of backing up to get to the beginning on that topic. What makes a military pension different than anybody else out there who’s got a retirement account or whose got, you know, teacher retirement or TMRS, or any of those things?

Thomas: Yeah. So in in 1981, there was a Supreme Court decision called McCarty V. McCarty, that said that military pensions were not divisible at all. And then along came the uniform services former spouses protection act, which was passed in 1983. And it said, no, they’re divisible, but with all these caveats. And it put all these different rules in place for how you can divide them, and all these different protections, and you know, rules. So, you know, we can go through some of those. And the first thing that you’re going to have to realize is, there are multiple different formulas, depending on the service member’s situation, on how you calculate what their pension, military pension is going to be.

So in some situations, you’re going to use what’s called the final pay analysis. And so you know, that has to do with sort of, you know, their last, you know, at the very end with what was their final pay, their final time and grade, final base pay, you know, you’re gonna go with that. Then there’s the, what we call the high three, and that’s the last three paychecks, and we base it off of that. And there’s and there’s even within those, there are different caveats and different ways that you have to sort of calculate in other things based on bonuses, and you know, other subsidies that you do or don’t get to count.

And then for reservists, it’s a completely different analysis. They use a very special point system that has nothing to do with the way you calculate it for an actual active duty service member. And then there’s the Redux system, which is a whole different system for calculating it. And so you need to be able to go look up these calculations, they’re fairly complex. And you need to be able to run through and how to, you know, understand, you know, how to read the service member’s, you know, LES and apply it through those calculations. And then, you know, the other thing is, is that recently, Congress just passed, you know, a new a new rule through the 2017 National Defense Authorization Act.

That said, we’re moving to blended retirement system which allows for all sorts of advances on your retirement. It also forces the servicemember to start paying into the what’s called the Thrift Savings Plan, which is, is a normal sort of, think of it as almost kind of like a normal contribution plan. And there’s matching, but the service member can opt out of it, but the next year, they’re going to be automatically re enrolled. And so, but how those deductions come out affects what they’re going to ultimately get. And there’s different levels that you can take out. And so that complicates things.

So, you know, that’s another rule. And then there’s the 10/10 rule, which says that if the spouse has been married for more than 10 years, during the 10 years of military service, then DFAS which stands for defense financial accounting services. They will make the payments from the pension directly to the spouse, okay, once everything is divided up. But if they’ve been married for less than the 10 years, then they won’t, and so you have to come up with other ways in the order to make sure that the service member then makes the payments directly to the spouse.

Holly: So you can’t do a typical QDRO that’s going to divide the pension and make those payments go anywhere but through the ex spouse?

Thomas: In that case, yes, so you know, so in some cases, you’re gonna be able to get it to go through you know, DFAS in other cases it’s gonna have to go through the servicemember.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law litigation in Collin, Denton and Dallas counties and appeals across Texas. The Draper Firm has represented parents in cases before multiple courts of appeals and prevailed in the Texas Supreme Court in one of the biggest parental rights cases in Texas history. For more information visit draperfirm.com, or call 469-715-6801.

Holly: That’s definitely something to keep in mind where if you don’t trust that person to pay you, maybe you don’t want part of the pension and you want something else in exchange.

Thomas: Right. And so and then, and then there’s, there’s disability benefits, right? So disability benefits are not actually divisible. So now there’s there’s some caveats to that, which is the court has, you know, in a case called Howe V. Howe, the Supreme Court said, okay, even though these aren’t divisible, right, even if later, that gets reduced for some reason for the veteran, that does not relieve the veteran from paying whatever it was from the rest of the division to the spouse. So but those aren’t divisible. The other one is, this is a really controversial one. People get upset about it, but it’s there, called the frozen benefit rule.

This was all you know, so the way this works is, when you calculate the value of the pension, you do it as the time and grade and rank and the value of the pension at the time the divorce occurs. So it’s not an, it’s not an if, as and when analysis. It is a if they were to retire today, so you don’t get any extra additional benefits. And so that can get can get difficult, because, you know, what, so for some, for some folks, they’re not going to be eligible for retirement at the time. And so you know, that gets that gets tricky.

So for example, if you’re an e4, right, this is the enlisted rank the e4, right. You know, your your time and service, your rank, and all the rest of it, your base pay, if they were to retire at that point, that pension is going to be tiny. So, you know, they may stay in for 20 years. And by the way, that’s the other thing about military pensions and retirement, people should know, service members are eligible to retire at 20 years. And so it’s that’s really early. So typically, the way it works is, this is a good thing for people to realize, and this happens a lot in mediation, you should really keep this in mind.

Typically, if a service member goes past 10 years, you can bet good money that they’re going to go the full 20, because it’s really, really dumb to go past 10 and then not go to the full 20. So what you’ll what you’ll see a lot of times in mediation is the service member will try to play tricks and say, oh, yeah, like, I’m not actually going to retire, right? And so they’ll try to keep the military pension out of it. That’s nonsense. They’re going to the full 20, if they’ve been in past 10 years, so like, no.

Holly: And if they don’t make it to the full 20, they get $0 from that pension.

Thomas: Correct. So that’s the other thing to keep in mind. But the other one is the survivor benefit plan that you need to be aware of, which is, the way this works is obviously if you know, the service member were to pre decease, the, you know, the spouse or former spouse, then, you know, it’s an annuity basically. And that’s a benefit that’s available to the servicemember and their families. Obviously, that’s typically only going to be available if it’s the first divorce, because typically, it’s gonna already be, you know, be claimed, if it’s, you know, the second divorce. And you need to have claimed that within the first year, otherwise, it’s barred by statute

Holly: Within the first year of the divorce?

Thomas: Of the divorce, correct. So, but that’s another thing that you need to be aware of. So, you know, the military pensions are, there’s a lot of rules, you know, that most family lawyers simply are not accustomed to dealing with. There’s just a lot of federal rules. So, you know, you need to be aware of all of these drafting issues. And, and by the way, these aren’t all the issues like, you know, we could we could sit here for days and go on and on and on, about all the problems you’re gonna run into.

So if you’re not familiar with these, like, you need to reach out to someone who is more familiar with them and ask for some help. You know, there’s there’s no shame in that. But don’t if you’re not familiar with this, don’t try to just go it alone, because you can and you will screw it up. And it’s, it’s a really easy way to catch a grievance.

Holly: Are there any issues related to benefits of a former spouse that family lawyers need to be aware? My understanding is that if you’ve been married long enough that the former spouse and kids, kids probably regardless, but can be entitled to some sort of benefits within the military. TRICARE or you know, using the store on the base.

Thomas: The commissary and the px, yeah. Yeah, there are some of those. And so, you know, particularly TRICARE, for example, you know, obviously, it depends on whether or not that service member is going to continue to be covered by TRICARE. So for example, obviously, if the service member remains active, he’s automatically going to be able to have his dependents covered. Obviously, once the divorce goes through, the spouse is no longer going to be considered a dependent, but the children will.

And so you can, you can have that be done. And also, you know, the TRICARE is not the easiest thing to deal with as many veterans will tell you. So just keep that in mind. So and then, you know, there are some, there are some on base privileges that you can, you can also work out. And so that is something to keep in mind as well. And as in addition to that, there are also certain on base programs for daycare. So also keep that in mind as well. Those are those are benefits that are available as well.

Holly: So another issue I see come up as relating to calculation of child support when we’re dealing with military pay, or when we’re dealing with military disability. Can you talk a little bit about that?

Thomas: Yeah. So the first thing to know is that each branch has their own minimum standards for child support, but they are all abysmally low, ridiculously low. And you can, you can go and look these up in their individual records are statutes rather. So for the Air Force, what you’re gonna want to look at is AFI36-2906 and P5800.16A 15001. And just to give you an idea, you know, for one child, you know, you’re looking at, you know, $350, or, you know, one half of BAH or OHA. So that comes, you know, that’s not very much money. That’s, that’s a tiny amount of money.

Holly: How does that compare then? Or how does that fit in with our Texas child support calculations?

Thomas: Right. So that is, that’s something that I’m saying that you can’t rely on that. That is, just because the military has those minimum standards, you can’t simply rely on the military branches to give you the, make sure that the child support is being taken care of. You need to directly go and bring that, you know, to the Texas courts. Now, this comes back to understanding how to read an LES statement. So it’s, it’s called a leave and earning statement. And every military member gets these, for every paycheck. Every paycheck, there’s an LES it’s issued, and they can they can go online to their account, and they can download that LES and they all have access to them.

So if they ever tell you that they don’t have access to them, that’s nonsense. So what you’re going to what you’re gonna see on there is you’re gonna see their base pay. And by the way, if you know their rank and their timing grade, and their years of service, you can actually go online and you’ll see, you can find pay charts. And you’ll be able to see on the page chart exactly what their what their base pay should be. So, you know, but you’ll see that on the LES what the base pay is. And so make sure that you see that and then, in addition, you’re gonna see base allowance for housing, you’re gonna see, you know, likely BAS.

Base allowance for subsistence, that’s for food. And then you’re gonna see other forms of pay to, you know, COLA, which is cost of living adjustments. You’re gonna see, you know, sometimes, you know, deployment pay, or, I mean, there’s a million different kinds of different kinds of pay. And you can go online, and you can look all of these up, they’re all there. And so, but what you need to be aware of is not all of these kinds of pay are going to be consistent. Some of them are just sort of one offs.

Some of them are just very temporary, for while they’re on this particular assignment, and so you need to know the difference. The most consistent ones that you’re going to see they’re going to be there consistently, are things like base pay is always going to be there. And typically, BAH. BAH and BAS once they’re there are going to stay. And then COLA, more often than not typically, that’s going to stay, although that has some caveats to it. So what you’re going to do is you take that, and obviously you’re going to do all the standard deductions. And you’re gonna, you’re gonna calculate that based off that.

Holly: Are all those various additions to base pay, taxed?

Thomas: They are. So well, I believe they are. I need to go back and check those. That’s a good question. But I believe so. So the other part of that is, is that you will, what you will also see is, members will often re enlist while they are deployed, because those, well, those reenlistment bonuses, if they’re deployed, when it’s done, are not taxable. They’re not taxed. So, you know, that’s also something to be aware of.

Holly: And I know there can be situations with certain members in the, and maybe all members of the military. I know I had a family member that was career military. And if he spent one day per month in certain countries, his entire month’s pay was not taxed. So I think there can be a lot of complicating issues and figuring out the net income when you’re looking at someone’s military pay.

Thomas: Yeah, it depends if they’re deployed, yeah, the taxes get changed. Now, if they’re stateside, you know, those are going to be taxed. But, you know, that’s, that’s another part of it. And also, you know, we should, you know, after this, you know, one of the things that we should also talk about is, you know, temporary orders and, and or final orders, or possession schedules in the event that the member gets deployed, you know, what happens there. And so those are, that’s another thing that you need to keep in mind, because you need to set out additional orders for what happens in the event of a deployment.

Holly: So on that piece, there’s, we have some things specifically in the family code that tells us, this is the one situation where you can have a nonparent essentially designated as using your time. What are some special things that attorneys should keep in mind about that?

Thomas: Yeah, so there’s actually a really good you can look it up on the American Bar Association’s website, and they actually came up with a great piece of model legislation for possession orders for in the case of deployed servicemembers, of parents. And so it’s, it’s fantastic. They did a really good job. But it talks about things like, you know, establishing, you know, regular communication, and what you tell the children, especially age appropriate things about the dangers that you know, mom or dad is in, and also who exactly you know, the parents are going to be with and the schedules there. Because you know, oftentimes you will have, you know the service member is the primary or sometimes even, sometimes even the sole, you know, get deployed.

And so those are things that you absolutely have to think about in terms of who gets the kid when they get deployed. And so there’s a, there’s a whole list of things that you normally wouldn’t think about. And so, you know, you need to sort of pick through that. But I encourage everyone, if you’re, if you end up with an active duty service member, you need to go look that up and sort of pick through that. And it’s a great way to, you know, just basically sort of copy and paste that, and just sort of tinker with it a little bit, for your particular case, but it’s a great jumping off point.

Holly: So circling back when we were talking about child support a few minutes ago, and one of the pieces of that, that we didn’t get to related to VA disability pay. I know a lot of former service members receive that, and we often see it when we’re looking at child support. Can you tell us how that factors in, if at all? And what we should do if we see that in the case?

Thomas: Yeah, so it does factor in. It is, it is part of, you know, calculating child support. So you absolutely do factor it in. So now, I will also say, weirdly, the AG the Texas AG has some internal policies about how they calculate certain parts of that, that disability. But I don’t know how well that would stand up in court if that were to ever get challenged. But per statute, all of that gets completely brought in for purposes of calculating child support. So that’s something that you need to be aware of. AG has those internal policies, but they don’t necessarily completely line up, at least in my opinion, with what the statute says.

So you take that. And the other thing that you need to be aware of is those disability payments are actually going to adjust over time. So those, you know, adjust with inflation. And Congress sometimes steps in and increases those, those payments. So you know, and the service member will sometimes, you know, file additional claims that will increase their disability rating. And if they, you know, get an increased rating, then they’ll get increased pay, or if they add additional dependents on, then that will also increase their pay, disability payments. So but that does absolutely get included when you’re calculating child support payments.

Holly: And so you mentioned increasing, increase of dependents increases the disability. Am I correct that if you know mom and dad are divorced, and dad is receiving disability payments, that the portion related to the child who’s living with mom, goes to mom, not to dad. And then therefore is going to be essentially an offset against dad’s child support obligation.

Thomas: And that’s where it gets sticky. So there’s always going to be an argument about that. I would argue that that’s the way it should be. But I have also seen it, not go that way. But I think that, you know, the way you outlined it is the way it should go. But just be aware that that’s gonna be a fight.

Holly: So we’re just about at a time. I know we could probably have a lot of other issues we can dive into. But for today, I think we’ll call it good. But one question I like to ask everyone who comes on the podcast is, if you could give one piece of advice to young family lawyers, what would it be?

Thomas: You know, in particular, you know, in this area, I would say absolutely, if you’re going to take these cases, go reach out for you know, either help or a mentor. And the other thing that I would highly recommend is that you go by the military divorce handbook that was put out by the ABA by Mark E. Sullivan.

Holly: All right. So where can our listeners know if they want to learn more about you?

Thomas: You can go to bustosfamilylaw.com and has a more complete bio there. And if you have any other any questions or you have any, you know, concerns or you need help, by all means, feel free to reach out to me and I’ll be more than happy to you know, answer any questions that I can.

Holly: Perfect. Well thank you so much for joining us today. For our listeners, if you enjoyed our podcast take a second to leave us a review and subscribe to enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at draperfirm.com.