Military Service and Your Family Law Case (part 1)

By: Jessica A. Bryant

Serving in the military can have unique impacts on your Colorado custody or divorce proceeding ranging from questions as to the proper state in which to file, special protections for service members, and questions regarding retirement account division. The first part of this article will address the impact military service has on the state of filing and the protections afforded to military service members. The second part will focus on financial issues that are unique to military service and the effect deployment can have on parenting time.

Before a case is even started, serving in the military can cause unique questions in terms of where to file your family law case. If you are seeking a divorce, you must be “domiciled” in Colorado for more than 90 days before you can file. Domicile basically means that Colorado must have been your state of permanent residence for at least 91 days before you can seek a divorce in Denver, Colorado. However, being stationed in Colorado is not sufficient to make it your state of permanent residence. One question is which state was designated on your State of Legal Residence Certificate. Other facts the Court can look to in order to overcome such designation include: the state in which the military member is registered to vote, has a driver’s license, filed taxes, intends to remain long-term, and/or registered his or her vehicle. However, vehicle registration alone may not be sufficient to show permanent residency as some military members register a vehicle in Colorado but complete an Affidavit of Nonresidence for tax purposes. Thus, before filing a divorce case in Colorado, you need to comprehensively look at the facts and ensure there is sufficient evidence of permanent residency for at least 90 days. Even if Colorado is not the state of permanent residence (for example, the military member is stationed here but intends to return to another state after such is complete) as long as the children have been in Colorado for at least 6 months, Colorado will be the state in which custody has to be determined. Therefore, it is possible that Colorado will be determining the custody issues while another state determines spousal support, allocation of property and debts, and grants the dissolution.

Another issue unique to family law cases in which at least one party is a member of the military is the special protections afforded military members under the Servicemembers Civil Relief Act. Two protections relevant to family law proceedings are protection from default and the ability to stay a proceeding. When a party is properly served, and simply does not participate in his or her family law matter, the Court can enter default orders (basically entering orders without that party’s participation). However, if the Court determines that the non-participating party is in military service, the Court cannot enter a default judgment until an attorney is appointed for such party. Another protection is that, if a party is in military service or within 90 days of release or termination from such service and has received notice of the proceeding, that party can request that the case be stayed. To request such stay, the party must provide a letter or communication stating why his or her military duty requirements materially affect that party’s ability to appear and a date on which the military member can appear, along with a communication from the party’s commanding officer stating that the party’s military duty prevents his or her appearance and that military leave is not authorized. The definition of military service is very specific and depends on which branch of the military the party is in.

For more information regarding military service and your family law case, contact an experienced family law attorney.