Austin Military Divorce Lawyer | Serving Fort Hood and Central Texas
A military divorce is a civilian divorce with a layer of federal rules bolted on top, and that layer is where people get hurt if their lawyer does not know it. Deployment, a pension, TRICARE, the Survivor Benefit Plan: each changes the playbook. At SMB Law, PC in Austin, an Austin military divorce lawyer handles these cases for service members and spouses alike, including families at Fort Hood and Camp Mabry.
What Our Clients Say
Key Takeaways
- A Texas court can divide military retired pay in a marriage of any length. The 10/10 rule decides only whether DFAS pays the former spouse directly, not whether the pension can be divided at all, which is why Austin military divorce lawyers treat it as a payment question rather than an eligibility one. See our divorce lawyers overview.
- Texas residency under Family Code Section 6.304 lets a stationed servicemember file here, but it does not give the court federal authority to divide the pension. 10 U.S.C. Section 1408(c)(4) excludes residence based on military assignment, so consent usually has to be papered.
- A military pension stops at the member's death. Only the Survivor Benefit Plan continues it, and a former spouse has one year from the order to file a deemed election. Miss it and there is no exception and no fix.
Introduction to Military Family Law
Military family law sits where Texas divorce law meets a stack of federal statutes, and you have to get both right. Three federal laws do most of the work. The Servicemembers Civil Relief Act lets an active-duty member pause a case when service genuinely prevents participation. The Uniformed Services Former Spouses Protection Act, 10 U.S.C. Section 1408, is what allows a Texas court to divide military retired pay and sets the rules for how. And the Survivor Benefit Plan decides whether that pension survives the member’s death.
Most of the costly errors we are asked to fix are not judgment calls. They are missed deadlines and orders DFAS will not pay.
Why Choose an Austin Military Divorce Lawyer?
The hard parts of a military divorce are the ones a civilian case never sees. A deployment can freeze a case for months. A permanent-change-of-station move can scramble custody. A pension earned over twenty years has to be valued and divided under federal rules, not just split down the middle.
Location matters more than people expect. Austin has no active-duty federal installation of its own, so our clients are mostly Fort Hood families about an hour north near Killeen, Texas Military Department personnel at Camp Mabry in Austin, Joint Base San Antonio families to the southwest, and retirees across Central Texas. That mix drives which county a case belongs in and how a possession schedule has to be built.
Role of an Austin Military Divorce Attorney
That is the role we fill at SMB Law, PC. Shane M. Boasberg has practiced Texas family law for more than two decades, with a background spanning private practice, the Texas Legislature, and the Office of the Texas Attorney General. We handle the Texas side and the federal side together, because a decree that is perfect under the Family Code is still worthless if DFAS rejects it.
Understanding the Basics of Military Divorce in Texas
In Texas, a military divorce runs on the same track as any other. It is a community property state, property division follows the just and right standard of Family Code Section 7.001, spousal support is capped by statute, and conservatorship turns on the best interest of the child. A 60-day waiting period runs after filing, subject to narrow family-violence exceptions.
What changes is everything attached to the uniform: which court may divide the pension, when the case can be paused, how deployment is handled, whether TRICARE continues, and whether the survivor annuity gets elected in time.
Jurisdiction, Residency, and the Pension Trap
Two separate jurisdiction questions, and most pages only answer one.
Can a Texas court grant the divorce? Family Code Section 6.301 requires that one spouse has been a Texas domiciliary for six months and a resident of the filing county for 90 days. Military families get two accommodations. Under Section 6.303, time a Texas domiciliary spends away on service still counts as Texas residence. Under Section 6.304, a person who was never a Texas resident but has been stationed at a Texas installation for the last six months, and in that county for the last 90 days, is treated as a Texas domiciliary for purposes of filing. It covers the accompanying spouse too.
Can that same court divide the pension? Not necessarily. This is the trap. Under 10 U.S.C. Section 1408(c)(4), a court may treat retired pay as property only if it has jurisdiction over the member by reason of residence other than because of military assignment, domicile, or consent. Section 6.304 deems Texas residence precisely because of the assignment, which is the one basis Section 1408(c)(4) excludes.
So a member domiciled in Florida, stationed at Fort Hood, who neither consents nor generally appears can be validly divorced in Texas and still have the retired-pay award refused by DFAS. Consent usually solves it, but it must be papered, and the order should state which basis applies.
Service members Civil Relief Act (SCRA) Protections
The Servicemembers Civil Relief Act is the member’s shield, and it is more specific than most descriptions suggest.
Under 50 U.S.C. Section 3932, a servicemember who has notice of the case and applies for a stay is entitled to at least 90 days, but only if the application includes two things: a communication explaining how current duty materially affects the ability to appear and giving a date the member will be available, and a letter from the commanding officer confirming that duty prevents appearance and that leave is not authorized. The missing commanding officer letter is the single most common reason a requested stay is denied.
Any additional stay is discretionary, and if the court refuses one it must appoint counsel for the member. Applying for a stay is expressly not an appearance and not a waiver of a jurisdictional defense, which matters beside the pension rule above. Section 3931 separately protects a member who has not appeared against a default judgment.
Dividing Military Retired Pay
Dividing a military pension is the most technical part of these cases.
The 10/10 rule is not what most people think it is. A Texas court can divide military retired pay in a marriage of any length. Ten years of marriage overlapping ten years of creditable service decides only whether DFAS will pay the former spouse directly. Fall short and the award is still completely valid; the retiree simply has to pay it personally, which is why short-marriage decrees need a real enforcement mechanism built in.
The frozen benefit rule, stated correctly. For divorces that became final after December 23, 2016, where the member had not yet retired, the divisible amount is fixed using the member’s retired pay base and years of creditable service as of the date of the decree, plus cost-of-living adjustments. For anyone who entered service on or after September 8, 1980, that base is the High-3 figure, not the member’s rank. Pages that describe the freeze in terms of “rank and years of service” are quoting a version of the statute that Congress struck and replaced. Post-divorce promotions and post-divorce service are excluded from the former spouse’s share, which is also what Texas courts already required under Berry and Grier.
Texas supplies the fraction. Retired pay earned during the marriage has been community property since Cearley v. Cearley in 1976. The community share is months of marriage overlapping creditable service divided by total months of service, valued as of the divorce. Family Code Section 3.007 no longer supplies this formula; those subsections were repealed in 2009.
Two caps and one hard stop. DFAS will not pay a former spouse more than 50 percent of disposable retired pay under all court orders, or more than 65 percent combined with a support garnishment. And under Section 1408(d)(4), payments stop at the death of the member or the former spouse, whichever comes first. The pension dies with the member. Only the Survivor Benefit Plan outlives him, which is why the next section matters as much as this one.
Custody, Deployment, and Child Support
Custody in a military family has to survive deployments and moves. Texas built a whole subchapter for it, and it is genuinely favorable to the deploying parent.
Under Family Code Section 153.702, when a conservator is ordered to deployment, mobilization, or temporary military duty, either parent may seek temporary orders without having to prove a material and substantial change beyond the deployment itself. Those temporary orders end automatically when the conservator returns, and the prior order controls again. Deployment does not rewrite your custody order.
If the deploying parent is the one with the exclusive right to designate the child’s primary residence, Section 153.703 sets an order of preference for who takes over, and the other parent comes first. If the deploying parent is the possessory conservator, Section 153.705 lets the court award that parent’s visitation to a designated person, often a grandparent or stepparent, so the child keeps the relationship.
Two provisions almost no competitor mentions. Section 153.707 requires the court, for good cause, to hold an expedited hearing when duty materially affects the ability to appear, and to allow testimony by teleconference or over the internet. And under Section 153.709, within 90 days of returning, the deployed parent may petition the court to compute the possession time lost during deployment and award makeup periods to compensate for it. That deadline is short and it is easy to miss.
VA Disability and the Limits on Dividing It
VA disability compensation cannot be divided as marital property. That much is settled. What people miss is how far the rule reaches.
In Howell v. Howell (2017), the Supreme Court held that a state court may not order a veteran to indemnify a former spouse for the loss caused when the veteran waives retired pay to receive disability benefits, and that calling the order reimbursement rather than a property division changes nothing. If a decree tries to guarantee the former spouse a fixed dollar figure against a later waiver, that clause is unenforceable.
The Court left two doors open, and this is the practical half: a court may account for the risk of a future waiver when it divides property, and may consider the reduction when setting or revisiting spousal maintenance. Price that risk at the divorce, through offsetting property or contractual terms, rather than an indemnity clause that will not hold. Disability pay still counts as income for support, and a veteran’s payment may drop once a spouse is no longer a dependent.
TRICARE and Health Coverage After Divorce
Health coverage is one of the most valuable things on the table, and it turns on exact numbers.
Under the 20/20/20 rule, an unremarried former spouse keeps full TRICARE and access to commissary and exchange facilities if the marriage lasted at least 20 years, the member performed at least 20 years of creditable service, and the marriage overlapped that service by 20 years. There is a second condition the statute states and most pages omit: the former spouse must not have coverage under an employer-sponsored health plan. Take a job with benefits and TRICARE eligibility ends.
Under the 20/20/15 rule, where the overlap is at least 15 years but less than 20, a former spouse divorced on or after April 1, 1985 gets one year of transitional TRICARE and no commissary or exchange privileges. Remarriage ends eligibility under either rule. Fall outside both and the Continued Health Care Benefit Program offers temporary coverage you pay for, similar to COBRA. Children’s TRICARE is unaffected by the divorce.
Child Support and Military Pay
Child support in a military case starts from the same Texas guidelines as any other: a percentage of monthly net resources, 20 percent for one child, 25 for two, 30 for three, 35 for four, and 40 for five, applied to the first $11,700 of net resources since September 1, 2025.
What surprises servicemembers is what counts as income. Family Code Section 154.062 sweeps in all wage and salary income and other compensation for personal services, plus all other income actually being received, and its list of exclusions is exhaustive and does not mention military allowances. So BAH and BAS are included. Because they are non-taxable, they go in at full value with no tax-chart reduction, which means a servicemember’s support number is materially higher than base pay alone suggests.
Here is the wrinkle almost nobody explains. A federal regulation, 5 C.F.R. Section 581.104, excludes housing and subsistence allowances from garnishment. So the obligation can be calculated on allowances that cannot then be involuntarily withheld from those same allowances. Those are two different questions, and a withholding order may not capture the full amount from federal pay. Enforcement has to be planned around that, not discovered later.
Serving Divorce Papers to an Active-Duty Service Member
Serving papers on an active-duty member has to be done by the book. The court needs proper jurisdiction and the member needs real notice and a genuine chance to respond. Under Texas law that generally means formal service of the citation and petition by a method that satisfies both state rules and the realities of military service, which gets harder when a spouse is deployed or stationed overseas.
One federal requirement rides along with it: any order dividing retired pay must certify that the member’s rights under the Servicemembers Civil Relief Act were observed, and it must identify the member. DFAS rejects orders that leave this out.
Divorce Process and Procedure
The mechanics look familiar: petition, service, discovery, negotiation or mediation, decree. What differs is the paperwork that must survive federal review. Every variable DFAS needs has to appear in one order — the agency will not assemble an award from two documents, so a decree missing the retired pay base or the years of creditable service sends you back for a clarifying order.
The Survivor Benefit Plan and the One-Year Deadline
This is where former spouses lose the most money, and it is almost always a missed deadline rather than a bad ruling.
A military pension stops at the member’s death. The Survivor Benefit Plan is the only thing that continues an income stream to a former spouse afterward, and a decree ordering SBP coverage does not execute itself. Somebody has to file.
If the member does not make the election, the former spouse may request a deemed election by sending DFAS a written request with a copy of the order. The statute gives that former spouse one year from the date of the court order or filing involved to get it in. The member has a parallel one-year deadline to make the election directly. Miss it and there is no waiver, no good-cause exception, and no order that can revive it. The coverage simply does not exist, and the annuity is gone at the member’s death.
File within one year of the decree regardless of any later order — the decree date is the safe anchor and never too early. One more trap: the premium comes out of the member’s retired pay, so a decree saying the former spouse bears it will not be honored that way by DFAS and must spell out how the parties settle up.
Common Mistakes in Military Divorces and How to Avoid Them
Most serious mistakes in military divorces come from bad information: a friend’s story, a forum post, a page quoting a superseded statute. The four that cost the most are assuming a short marriage means no pension division, missing the one-year SBP deadline, letting a Texas court divide a pension it has no federal authority to divide, and writing an indemnity clause for a VA waiver that Howell makes unenforceable.
All four are cheaper to prevent than to fix. Talk to an Austin military divorce lawyer before you sign anything.
Talking to an Austin Military Divorce Attorney
A first consultation is where the plan takes shape. We review your situation, confirm which court can hear the divorce and which can divide the pension, identify the deadlines already running, and walk through the likely timeline and cost. If you are stationed at Fort Hood, formerly Fort Cavazos, or at Camp Mabry or Joint Base San Antonio, bring your orders and your LES. If you are the spouse, bring what you know about the member’s service dates.
Our office is at 1204 San Antonio Street in downtown Austin, and we represent clients across Travis, Williamson, Hays, and Bell counties. The consultation is free.
The Role of Mediation and Collaborative Law in Military Divorces
Not every military divorce has to be a fight. Mediation and collaborative divorce often produce better possession schedules for a family that moves, because the parties can build in contingencies a court would never draft on its own. In Texas a mediated settlement agreement that meets the statute is binding once signed, so go in prepared and with the pension numbers worked out.
Summary
A military divorce has to satisfy two systems at once, and the federal half is where the money is. A Texas court can divide retired pay in a marriage of any length, but only if it has jurisdiction under Section 1408(c)(4), and only on the retired pay base and years of service frozen at the decree. The pension ends at death unless the Survivor Benefit Plan is elected within one year. TRICARE turns on 20/20/20 or 20/20/15 and on whether you have employer coverage. A VA waiver cannot be indemnified, so the risk has to be priced up front. And a deployed parent has real protections, including makeup possession within 90 days of coming home.
Every one of those is a deadline or a drafting decision, not a judgment call. Call SMB Law, PC at (512) 561-5003 to speak with an Austin military divorce lawyer about your case. The consultation is free.
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Frequently Asked Questions
Why do I need a lawyer who handles military divorces specifically?
Because a military divorce adds federal law on top of the Texas Family Code, and the federal half carries deadlines a general practice will not know to look for: USFSPA jurisdiction over the pension, the frozen benefit variables DFAS requires in the order, the one-year Survivor Benefit Plan election, and TRICARE eligibility rules. Those are where the money is.
What are the residency requirements for filing a military divorce in Texas?
One spouse must have been a Texas domiciliary for six months and a resident of the filing county for 90 days. Family Code Section 6.304 lets a servicemember who was never a Texas resident qualify by being stationed at a Texas installation for those same periods, and it covers the accompanying spouse. Careful, though: satisfying Texas residency does not by itself give the court federal authority to divide the military pension.
How does the SCRA protect an active-duty member during a divorce?
It lets an active-duty member ask the court to pause the case, and the first stay of at least 90 days is mandatory if the application includes both a statement of how duty prevents appearing and a letter from the commanding officer confirming leave is not authorized. Later stays are discretionary. Applying for a stay is not an appearance and does not waive a jurisdictional defense. It buys time to participate; it does not stop the divorce.
Does the 20/20/20 rule decide how the military pension is divided?
No. That is a common mix-up. The 20/20/20 rule is a health and base benefits rule, not a retirement-division rule. An unremarried former spouse with 20 years of marriage, 20 years of creditable service, and 20 years of overlap keeps TRICARE and commissary and exchange access, provided they do not have employer-sponsored health coverage. Whether retired pay can be divided is a separate question with no minimum marriage length at all.
What is the deadline for Survivor Benefit Plan coverage?
File it within one year. A decree ordering Survivor Benefit Plan coverage does not execute itself. If the member does not elect, the former spouse must send DFAS a written deemed-election request with the order within one year of the order involved. There is no extension and no good-cause exception, and without it the annuity disappears when the member dies. Use the decree date as your deadline.
Military Divorce Lawyers Serving Nearby Communities
SMB Law, PC represents clients across Central Texas. Choose your city for local court, filing, and case details: