The Husband in this case is a retired U.S. military member, who had, during the marriage, been stationed in Germany. The parties met in Germany, married there, and lived there during the entirety of their marriage. They also divorced there on October 6, 2009. In their German divorce decree, the parties had 2 separate references to the Husband’s U.S. military pension. It appears, from the language, that the parties agreed to apply what is called the “law of obligations” to divide the Husband’s pension rights in the future (at the time of retirement). The Wife later filed suit in Texas to seek the division of these pension benefits. The court in Texas did, in fact, divide the pension rights, and the Husband appealed.

In the Texas proceeding, the Wife called an Expert on German pension law, who testified that Germany has no jurisdiction over U.S. military retirement pensions. Typically pension rights are divided according to public law in Germany, but because a German court has no jurisdiction over these pension rights, this could not happen. Therefore, the only other way to proceed was to waive rights to the pension, or for the parties to proceed under the “law of obligation,” which Wife’s expert said was essentially a contractual agreement to divide up the retirement/pension rights at the time the parties reach the age of retirement (which Husband did on November 1, 2016). According to the German divorce decree, this appears to be what happened between the parties. The law of obligations would require a separate proceeding, and Wife’s German expert further testified that the proceeding could move forward in Texas. Husband’s expert “aligned” with Wife’s expert in substantial part. He further said that the Wife could have, but didn’t, asked for the pension to be accounted for in some type of monetary award in Germany instead of agreeing to have it divided when they retire. The Husband’s expert, however, opined that Wife used the wrong procedure to seek retirement assets – any action should have been brought in Germany, not the United States.

The court concluded that the German courts had no jurisdiction to divide the military retirement. Any division of the military retirement must be done by way of a court order with a specific amount outlined therein. Therefore, the Texas courts’ jurisdiction had to be invoked. It further concluded that there is no evidence to suggest that the parties’ agreement to apply the law of obligations was a contract akin to a Texas marital settlement agreement. It was more akin to a ministerial act due to the fact that “a German court must address division of pensions in every divorce.” The court concluded that if it were to enforce the provision as a contract, then the Wife’s only recourse would be to seek a money judgment from a court in Germany, but never to secure a division of the actual retirement account, which would be unjust, rendering the “agreement” (if it were one) unenforceable in Texas.

Finally, the Texas court looked at its own statute. Some U.S. states have statutory provisions that do not permit division of marital assets after the granting of a divorce decree. Texas is not like that. It does permit such division. The Texas court affirmed the trial court’s division of the military retirement after the German divorce.