## Facts

- During marriage, Isaac Patino (husband) accrued military retirement benefits and later retired from the military.
- On February 22, 1980, the spouses executed a notarized written “Separation Agreement (Property Settlement and Support Agreement)” stating they intended to live separate and apart permanently.
- The agreement provided that Isaac “declared himself to be a trustee” of all military retirement pay for the benefit of his wife (Trong) and child, and agreed to execute an allotment of retirement pay to Trong.
- Attached schedules allocated the homestead and certain personal property to Trong, and other personal property to Isaac.
- The agreement requested that any divorce court approve and incorporate it into a divorce decree.
- Isaac simultaneously executed and recorded a special warranty deed conveying the homestead to Trong.
- Isaac left the home shortly after signing; after a brief reconciliation, the parties separated again.
- Isaac filed for divorce on January 25, 1982; after a bench trial, the court found the agreement was not “just, fair, and equitable” and set it aside.
- The divorce was granted April 28, 1982; the final written decree (signed January 28, 1983) awarded Trong the homestead and related property but awarded Isaac all military retirement pay accruing after divorce.
- Trong appealed the property division, challenging (1) setting aside the agreement and (2) the retirement-benefits award.

## Issues

1. Whether the spouses’ written agreement should be treated as a partition/exchange agreement effective without judicial approval, or as a marital property settlement subject to review in divorce.
2. Whether the divorce court could refuse to enforce the agreement upon finding it was not “just and right” under the Texas Family Code.
3. Whether the property division was erroneous for failing to consider or properly address military retirement benefits in making a just and right division.

## Decision

- The court affirmed the ruling setting aside the agreement.
- The court reversed the property division and remanded for a new trial on property division.
- On remand, the trial court was permitted to consider division of Isaac’s military retirement benefits.

## Legal Principles

- A written agreement between spouses that is expressly tied to permanent separation and anticipates divorce may be treated as a property settlement in contemplation of divorce rather than as a self-executing partition/exchange agreement.
- In a divorce proceeding, a spousal property agreement is binding unless the court finds it is not “just and right”; if so found, the court may decline to enforce it and instead make a just and right division.
- Military retirement benefits can be a material marital asset that must be considered in the court’s just and right property division; a division that does not account for such benefits may require reversal and remand.

## Conclusion

The appellate court upheld the trial court’s discretion to reject the spouses’ written property agreement as not just and right, but required a new property-division trial because the decree did not properly address the military retirement benefits in the overall division.


Patino v. Patino, 687 S.W.2d 799 (Tex. App.—San Antonio 1985)