Military Divorce in Texas

Texas is home to some of the largest military installations in the country, and military divorces are a significant part of the state’s family law practice. While Texas divorce law applies to military families in the same way it applies to civilian families, military divorces involve an additional layer of federal law that governs how military benefits are divided, how service members are protected during deployment, and how jurisdiction is established. Understanding the interplay between Texas Family Code (TFC) provisions and federal statutes is essential for any service member or military spouse going through a divorce.

For a broader overview of the divorce process, see our complete guide to divorce.

Federal Preemption and the USFSPA

The Uniformed Services Former Spouses’ Protection Act (USFSPA), codified at 10 U.S.C. Section 1408, is the federal statute that governs the division of military retirement pay in divorce. The USFSPA does two critical things:

1. It authorizes state courts to treat disposable retired pay as marital property subject to division.
2. It establishes the mechanism by which the Defense Finance and Accounting Service (DFAS) can make direct payments to a former spouse.

Without the USFSPA, federal preemption would prevent state courts from dividing military retirement at all. The USFSPA does not require division — it permits it. Whether military retirement is actually divided, and how, depends on state law. In Texas, military retirement earned during the marriage is community property and is subject to a just and right division under TFC Section 7.001.

The 10/10 Rule for Direct Pay

The 10/10 rule is one of the most commonly misunderstood aspects of military divorce. Under the USFSPA, DFAS will make direct payments to a former spouse only if:

• The service member has at least 10 years of creditable military service, AND
• The marriage overlapped with at least 10 years of that military service

If the 10/10 rule is not met, the former spouse is still entitled to their share of the retirement — the court can still order division. However, DFAS will not process direct payments. Instead, the service member must make payments directly to the former spouse, which creates enforcement challenges.

Meeting the 10/10 rule provides a significant practical advantage: the former spouse receives their share directly from DFAS each month, eliminating dependence on the service member’s cooperation.

Dividing Military Retirement (Disposable Retired Pay)

The USFSPA permits division of disposable retired pay, which is gross retired pay minus certain deductions, including:

• Amounts owed to the United States for previous overpayments
• Amounts waived in order to receive VA disability compensation
• Survivor Benefit Plan (SBP) premiums

The VA disability waiver is a critical issue. Under Howell v. Howell (2017), the U.S. Supreme Court held that state courts cannot directly divide VA disability pay or order a service member to indemnify a former spouse for retirement pay lost due to a disability waiver. This means that if a retiree waives a portion of retirement pay to receive VA disability compensation, the former spouse’s share may be reduced.

Methods of Division

Texas courts typically divide military retirement using one of two approaches:

• Present value offset: The retirement is valued as of the divorce date, and the non-military spouse receives other assets of equivalent value. This provides a clean break but requires actuarial valuation.

• Reserved jurisdiction / if-as-and-when: The court retains jurisdiction and divides each retirement payment as it is received. The former spouse receives a percentage of each monthly payment. The standard formula is:

  (50% x [months of marriage overlapping with military service] / [total months of creditable military service]) x disposable retired pay

  This formula may be adjusted by the court based on the equities of the case.

Thrift Savings Plan (TSP)

The Thrift Savings Plan is the military equivalent of a 401(k). Contributions made during the marriage from community funds are community property under Texas law and subject to division. Dividing the TSP requires a Retirement Benefits Court Order (RBCO), which is similar to a Qualified Domestic Relations Order (QDRO) used for civilian retirement plans.

The RBCO must comply with TSP requirements and be accepted by the Federal Retirement Thrift Investment Board. Mistakes in the order can cause significant delays, so it is important to have the order prepared or reviewed by an attorney familiar with TSP division.

Servicemembers Group Life Insurance (SGLI)

SGLI provides low-cost life insurance to active-duty service members, with coverage up to $500,000. During a divorce, courts may order the service member to maintain SGLI coverage with the former spouse or children as beneficiaries, particularly when there are ongoing support obligations.

However, SGLI beneficiary designations are governed by federal law, and there are limits to a state court’s ability to enforce beneficiary designations. Service members should be aware that failing to update SGLI beneficiary designations after a divorce can result in unintended consequences.

BAH and BAS Treatment

Two components of military compensation that frequently arise in Texas military divorces are:

• Basic Allowance for Housing (BAH): A tax-free allowance to offset housing costs. BAH rates vary by location, pay grade, and dependency status.
• Basic Allowance for Subsistence (BAS): A tax-free allowance for food expenses.

In Texas, BAH and BAS are generally treated as income for purposes of calculating child support and spousal maintenance, even though they are not subject to federal income tax. Texas courts recognize that these allowances represent a significant portion of a service member’s total compensation and should be included in support calculations.

However, BAH and BAS are not part of retired pay and are not subject to division as property.

SCRA Protections

The Servicemembers Civil Relief Act (SCRA), codified at 50 U.S.C. Section 3901 et seq., provides important protections for active-duty service members involved in civil litigation, including divorce:

• Stay of proceedings: A service member may request a stay (postponement) of court proceedings if military duty materially affects their ability to participate. The court must grant an initial stay of at least 90 days upon proper application.
• Default judgment protections: A court cannot enter a default judgment against a service member without first appointing an attorney to represent their interests if the service member has not appeared.
• Interest rate cap: The SCRA caps interest rates on pre-service debts at 6%, which can affect how pre-existing debts are treated in the divorce.

The SCRA does not prevent a divorce from proceeding, but it can delay proceedings and provide procedural protections that are unavailable to civilians.

Residency and Jurisdiction

Establishing jurisdiction in a military divorce can be complicated because service members are frequently stationed in states other than their state of legal residence. Under Texas law, a divorce may be filed in Texas if:

• Either spouse has been a domiciliary of Texas for at least six months, AND
• Either spouse has been a resident of the county where the petition is filed for at least 90 days

For service members, the question of domicile is often distinct from the question of where they are stationed. A service member stationed in Texas may maintain legal domicile in another state, and vice versa. The SCRA protects service members from being deemed residents of a state solely because they are stationed there.

This means that in some military divorces, multiple states may have jurisdiction, and the choice of forum can have significant implications — particularly regarding property division, since Texas is a community property state while many other states follow equitable distribution.

Texas Family Code Provisions

Beyond the federal overlay, standard TFC provisions apply to military divorces:

• Property division: Under TFC Section 7.001, the court must divide the community estate in a manner that is “just and right.” Military retirement earned during the marriage is community property.
• Child support: Texas child support guidelines under TFC Chapter 154 apply. Military income, including BAH and BAS, is included in the calculation.
• Conservatorship and possession: TFC Chapter 153 governs custody. Military deployment may affect possession schedules, and courts may issue temporary orders to address periods of deployment.
• Spousal maintenance: TFC Chapter 8 applies. Military income is counted for eligibility and calculation purposes.

For more on filing for divorce in Texas, see our article on filing for divorce in Texas without your spouse’s consent.

What to Do Next

If you are a service member or military spouse facing divorce in Texas, specialized preparation is important:

1. Understand the federal-state interplay. Military divorces involve both Texas law and federal statutes. Make sure you understand how each applies to your situation.
2. Gather military financial records. Obtain Leave and Earnings Statements (LES), retirement point statements, TSP account statements, and SGLI documentation.
3. Determine the marital share of retirement. Calculate the overlap between the marriage and creditable military service to estimate the community property portion of retirement.
4. Consider the 10/10 rule. If the marriage and service overlap by at least 10 years, direct pay through DFAS is available. If not, plan for alternative enforcement mechanisms.
5. Consult with an attorney. Military divorce requires familiarity with both Texas family law and federal military law. An experienced attorney can protect your rights and ensure that retirement benefits, allowances, and other military-specific issues are handled correctly.

Schedule a free consultation to discuss your Texas military divorce with an experienced family law attorney.