Sample Decree language
The following language may be used in lieu of the standard language contained in the Texas Family Practice Manual. It is intended to be used in the division of property provisions of the Decree for the Alternate Payee. Obviously, there should be language in the Participant’s division to award the remaining benefit. Revisions may be required to fit a particular fact situation. This sample language is intended only for attorneys since one must know which sample to begin with and how it must be revised to fit the case.
Defined Contribution Plans (401k, 403b, 457b, etc)
(Note: Including the loan balance in the calculation will increase the award to Alternate Payee when a % award is made. When a specific dollar amount is awarded, always exclude the balance of any loan.)
All contributions during marriage:
A portion of Repondent’s retirement benefits in the [Name of Plan], that portion being [% or $ amount] of the account balance as of [date of division], [including or excluding] the balance of any loan against the account in calculating wife's interest, [with or without] a proportionate amount of any interest, dividends, gains or losses from [date of division] and more particularly described in a Qualified Domestic Relations Order to be signed by the Court.
Some contributions prior to marriage:
A portion of Respondent's retirement benefits in the [Name of Plan], that portion being [% or $ amount] of the account balance from [date of marriage] to [date of division], [including or excluding] the balance of any loan against the account in calculating wife's interest, [with or without] a proportionate amount of any interest, dividends, gains or losses from [date of division] and more particularly described in a Qualified Domestic Relations Order to be signed by the Court.
Defined Benefit Plans (Pension)
All accrued during marriage, Participant not receiving benefit payments:
A portion of Respondent's retirement benefits in the [Name of Plan], that portion being [%] of the accrued benefit as of [date of division], [including or excluding] a proportionate amount of any cost-of-living adjustments, early retirement supplements and subsidies, interim benefits or any other ad hoc benefit increases derived from credited service during the marriage and more particularly described in a Qualified Domestic Relations Order to be signed by the Court.
Some credited service prior to marriage, Participant not receiving benefit payments (no formula method stated):
A portion of Respondent's retirement benefits in the [Name of Plan], that portion being [%] of the community property benefit accrued as of [date of division], [including or excluding] any cost-of-living adjustments, early retirement supplements and subsidies, interim benefits or any other ad hoc benefit increases derived from credited service during the marriage and more particularly described in a Qualified Domestic Relations Order to be signed by the Court.
Some credited service prior to marriage, Participant not receiving benefit payments (time apportionment Berry formula):
A portion of Respondent's retirement benefits in the [Name of Plan], that portion being [%] of the benefit accrued as of [date of division] times a fraction, the numerator of which is the number of months of credited service in the Plan during the marriage and the denominator of which is the number of months of credited service as of [date of division], [including or excluding] a proportionate amount of any cost-of-living adjustments, early retirement supplements and subsidies, interim benefits or any other ad hoc benefit increases derived from credited service during the marriage and more particularly described in a Qualified Domestic Relations Order to be signed by the Court.
Participant receiving benefit payments at time of divorce:
A portion of Respondent's retirement benefits in the [Name of Plan], that portion being [% or $ amount] of the monthly benefit payments under the Plan,[including or excluding] a proportionate amount any cost-of-living adjustments, interim benefits or any other ad hoc benefit increases derived from credited service during the marriage and more particularly described in a Qualified Domestic Relations Order to be signed by the Court.
Military Retirement
(Note: Be certain the "10/10 Rule" is met in order to receive direct payment. The Rule is that there must have been at least a 10 year marriage during which there was at least 10 years of creditable service.)
All Active Service
All service during marriage, Service Member not retired and still active duty:
______% of Respondent's disposable military retired pay the member would have received had the member retired on [date of divorce or division] and with a proportionate amount of all cost-of-living adjustments.
Some service prior to marriage, Service Member not retired and all active duty:
______% of Respondent's disposable military retired pay the member would have received had the member retired on [date of divorce or division], times a fraction, the numerator of which is the number of months of service during the marriage and the denominator or which is the service member’s total months of service, with a proportionate amount of all cost-of-living adjustments.
All service during marriage, Service Member retired:
[___%] of Respondent's disposable military retired pay, plus a proportionate amount of all cost-of-living adjustments.
Some service prior to marriage, Service Member retired:
Same language as above, but adjust % to account for separate property interest, using a fraction, the numerator of which is the number of months of service during the marriage and the denominator of which is the total number of months of service. Also, include finding by the Court as to those figures.
Some Reserve Service
All service during marriage, Service Member not retired:
[___%] of Responsent's disposable military retired pay the member would have received had the member become eligible to receive military retired pay on [date of divorce or date of division], plus a proportionate amount of all cost-of-living adjustments.
Some service prior to marriage, Service Member not retired:
______% of Respondent's disposable military retired pay the member would have received had the member retired on [date of divorce or division], times a fraction, the numerator of which is the number of reserve points earned during the marriage and the denominator or which is the service member’s total number of reserve points, with a proportionate amount of all cost-of-living adjustments.
All service during marriage, Service Member retired:
[___%] of Respondent's disposable military retired pay, plus a proportionate amount of all cost-of-living adjustments.
Some service prior to marriage, Service Member retired:
Same language as above, but adjust % to account for separate property interest, using a fraction, the numerator of which is the # of reserve points during marriage and the denominator of which is the total # of reserve points. Also, include finding by the Court as to those figures.
Military Survivor Benefit Plan
In the event it is the intention of the parties to provide for a Survivor Benefit, add the following:
Petitioner shall be designated a beneficiary under the Armed Services Survivor Benefit Plan and shall continue to remain beneficiary as a former spouse under that plan.
(Note: The cost of the Survivor Benefit Plan will be taken "off the top" and can't be allocated to one party. There can be only one surviving spouse.)
FERS or CSRS
Petitioner is entitled to an amount equal to 50% of Respondent's "gross" monthly annuity under the Federal Employee Retirement System [or Civil Service Retirement System] which shall be computed effective ________________, 20__, as though Respondent had separated from a position in the United States Government covered by the Federal Employee Retirement System on such date. In computing such amount of Petitioner's share of Respondent's employee annuity, the United States Office of Personnel Management is hereby specifically instructed to limit the computation of Respondent's employee annuity to only service performed from the date of marriage through ________________, 20___, and not to apply any salary adjustments occurring after _________________, 20___. The United States Office of Personnel Management is directed to pay Petitioner's share directly to Former Spouse. Optional: Petitioner shall be named as beneficiary for the" maximum" surviving spouse benefit. (Note: Instead of "maximum", which would allow only one surviving spouse, one could also award "pro rata", which would allow the former spouse and a new spouse to share the surviving spouse benefit, or a specific %.)
Federal Railroad Retirement
Petitioner is awarded, and the Railroad Retirement Board is directed to pay, an interest in the portion of Respondent’s benefits under the Railroad Retirement Act (45 U.S.C. §§ 231-231v) which may be divided as provided by Section 14 of that Act (45 U.S.C. § 231m) (also known as Non-Tier I benefits). Petitioner's share shall be computed by multiplying the divisible portion of Respondent’s monthly benefit, but only using the Respondent’s length of service and earnings as of __________________, 20____, by a fraction, the numerator of which is the number of months Respondent worked for a railroad employer during the period of the marriage, January 1, 2002 through __________________, 20___, and the denominator of which shall be Respondent’s total number of months employed by a railroad employer as of ___________________, 20___, and then multiplying the product by 50%, including a proportionate share of any cost-of-living increase in the employee's divisible benefits.