In some Texas divorce cases, the parties are able to reach an agreement on property division. Such an agreement is treated as a contract, even when it is incorporated into a final agreed divorce decree. If there is an ambiguity, the agreement may be reformed to correct a mutual mistake or reflect the parties’ intent. An ambiguity exists if the meaning is uncertain or could reasonably be interpreted in more than one way. To show there was a mutual mistake, a party must prove there was a definite agreement that was misstated in the contract due to a mistake of both parties.
In a recent case, a wife moved for clarification to correct the trial court’s omission of the amount of her portion of the husband’s military retirement. The couple divorced in 2000. The agreed final divorce decree awarded the wife an amount of the husband’s Navy disposable retired pay, and 50% of all increases. The amount was supposed to be “determined under the formula set forth below,” but the decree did not contain a provision setting forth a specific portion or calculation. The decree awarded` the portion of the retirement pay “not awarded to [the wife]” to the husband.
The husband started receiving his military retirement benefits in 2015. When the wife contacted the Defense Finance and Accounting Service to get her share of the benefits, she was told she could not be paid because the decree did not include a formula awarding her a portion of the retirement.
The wife then moved for clarification and enforcement of the decree, seeking a correction of the omission. The trial court found the decree was ambiguous and conducted an evidentiary hearing regarding the parties’ intent. The wife testified they had agreed to split the retirement “50/50.” She also testified that she had received an email from the husband after she filed the motion to clarify, stating, “Just because the court gave you half my retirement, didn’t mean the Navy was gonna agree.”
The husband testified he understood that they were going to divide the retirement 50/50 for the time they were married while he was in the military.
The trial court granted the order for clarification. In the clarifying order, the court specified the wife was to receive 50% of the husband’s military retirement benefits earned during the marriage. The court entered a Domestic Relations Order that awarded her 34.62% of the retirement based on the amount of time the husband served in the military during the marriage.
The husband appealed, arguing the clarifying order improperly modified the property division. He argued the proper remedy to correct the omission would have been a direct appeal, not a motion to clarify filed years after the decree was entered.
The appeals court found the decree was ambiguous. The decree indicated an intent to award part of the military retirement to the wife It awarded the wife “[a]ll right, title and interest in and to the monthly amount determined under the formula set forth below,” but failed to include a provision containing the amount or formula. The decree awarded 50% of cost of living increases to the wife. It included a lengthy section titled “Division of Husband’s Military Retirement” with findings under the Uniformed Services Former Spouses’ Protection Act. The decree appointed the husband trustee of the wife’s share of his military retirement. The appeals court noted these provisions would not be necessary if there was no intent for the wife to receive a portion of the retirement.
The evidence showed the parties had agreed to split the retirement 50/50, but this agreement was not reflected in the decree due to a scrivener’s error. The appeals court found the trial court did not err in correcting this mistake and affirmed the trial court’s orders.
The decree in this case referenced a provision that did not exist. The existence of a mistake in a divorce decree may not always be so conspicuous. If you are considering seeking a clarifying order, an experienced Texas divorce attorney can review your divorce decree and advise you of your options. Call McClure Law Group at 214.692.8200 to schedule a consultation.