Allison v. Allison

Texas Supreme Court

Allison v. Allison

700 S.W.2d 914

CourtTexas Supreme Court

DecidedDecember 4, 1985

DocketC-4384

StatusPublished

Cited by18 cases

This text of 700 S.W.2d 914 (Allison v. Allison) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allison v. Allison, 700 S.W.2d 914 (Tex. 1985).

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Opinion

PER CURIAM.

This is a partition suit brought by a former spouse of a military serviceman to obtain division of military retirement benefits. The trial court rendered summary judgment for the serviceman, and the court of appeals affirmed that judgment. 690 S.W.2d 340. The parties were divorced in September, 1981. The divorce decree expressly awarded all military retirement benefits to the serviceman.

The parties’ divorce decree was rendered after the date of the United States Supreme Court’s opinion in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), and before the effective date of the Uniform Services Former Spouses Protection Act, 10 U.S.C. § 1408 [February 1, 1983]. The USFSPA makes McCarty nugatory with respect to its application to judgments rendered after the date of that decision. Segrest v. Segrest, 649 *915 S.W.2d 610, 613 n. 2 (Tex.1983); Cameron v. Cameron, 641 S.W.2d 210, 212-13 (Tex.1982). Accordingly, the rules of law applicable to the partition of military retirement benefits which controlled prior to the rendition of the McCarty decision control the disposition of partition suits brought after the effective date of the USFSPA.

Partition is available as a means of dividing property formerly held by spouses as community property which is not divided upon divorce and is later held by the former spouses as tenants in common. Harrell v. Harrell, 692 S.W.2d 876 (Tex.1985). However, the disposition of retirement benefits in the express terms of a divorce decree renders those benefits not subject to later partition. Constance v. Constance, 544 S.W.2d 659, 660-61 (Tex. 1976). In the present case, the divorce decree made an express disposition of William Allison's military retirement benefits. The court of appeals’ opinion is consistent with our opinion in Constance v. Constance and, therefore, we refuse petitioner’s application for writ of error, no reversible error. Tex.R.Civ.P. 483.

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PER CURIAM.

This is a partition suit brought by a former spouse of a military serviceman to obtain division of military retirement benefits. The trial court rendered summary judgment for the serviceman, and the court of appeals affirmed that judgment. 690 S.W.2d 340. The parties were divorced in September, 1981. The divorce decree expressly awarded all military retirement benefits to the serviceman.

The parties’ divorce decree was rendered after the date of the United States Supreme Court’s opinion in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), and before the effective date of the Uniform Services Former Spouses Protection Act, 10 U.S.C. § 1408 [February 1, 1983]. The USFSPA makes McCarty nugatory with respect to its application to judgments rendered after the date of that decision. Segrest v. Segrest, 649 *915 S.W.2d 610, 613 n. 2 (Tex.1983); Cameron v. Cameron, 641 S.W.2d 210, 212-13 (Tex.1982). Accordingly, the rules of law applicable to the partition of military retirement benefits which controlled prior to the rendition of the McCarty decision control the disposition of partition suits brought after the effective date of the USFSPA.

Partition is available as a means of dividing property formerly held by spouses as community property which is not divided upon divorce and is later held by the former spouses as tenants in common. Harrell v. Harrell, 692 S.W.2d 876 (Tex.1985). However, the disposition of retirement benefits in the express terms of a divorce decree renders those benefits not subject to later partition. Constance v. Constance, 544 S.W.2d 659, 660-61 (Tex. 1976). In the present case, the divorce decree made an express disposition of William Allison's military retirement benefits. The court of appeals’ opinion is consistent with our opinion in Constance v. Constance and, therefore, we refuse petitioner’s application for writ of error, no reversible error. Tex.R.Civ.P. 483.

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Bluebook (online)

700 S.W.2d 914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allison-v-allison-tex-1985.

Opinion

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