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St. Mary's Law Journal

Authors

Joseph F. Sage

Publisher

St. Mary's University School of Law

Abstract

Texas courts have solidified the rule that retirement benefits are community property, subject to judicial division on divorce. The courts have largely overlooked an area of federal law and regulation involving the distinction between retirement from active duty and absolute retirement from service. Generally, regularly commissioned officers remain in the military even after retiring from active duty, while officers with reserve commissions terminate their military commitment upon retirement. Texas courts have not observed the distinction between the retirement benefits for regular and reserve officers, which are correctly labeled retired pay and retirement pay, respectively. Hence, current wages fall outside of the classifications of separate and community property under the Texas Family Code in divorce cases. Consequently, such wages cannot fall under the broad classification of marital property. The United States Supreme Court has recognized a “manifest” difference between retirement from active duty and completely severing connections with the military upon retirement. The retired regular officer receives compensation based on their current status. Retired regular officers remain a part of the military and continue to serve in an official capacity, including complying with military regulations and obeying recall to active duty. Given the status a retired regular officer retains, it is evident that wages paid to her are for current compensation and can only be separate in character when received after divorce. Hence, the compensation a retired regular officer receives could not possibly be community property in Texas. Texas courts should examine their approach to this matter. After all, the Texas Family Code seems to conclude that a retired regular officer’s pay is separate property if received after the termination of the marriage.

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