Military Service and Your Family Law Case (part 2)

By: Jessica A. Bryant

Serving in the military can have unique impacts on your Colorado divorce or custody proceeding ranging from questions as to the proper state in which to file, special protections for service members, and questions regarding retirement account division. In Part 1, I discussed the impact military service has on the state of filing and the protections afforded to military service members. This second part focuses on financial issues that are unique to military service and the effect deployment can have on parenting time.

Financials Issues

One area unique to Denver military divorces is the division of retirement accounts. Military members who serve a minimum of twenty years are entitled to pension benefits. Federal law allows the Court to divide a military retirement account if a variety of factors are met. This is a very technical area but two main requirements that must be met are that the parties must have been married for at least ten years overlapping the parties military service (i.e. for a ten year marriage the military member must have served all ten years for the court to be able to order direct division of the retirement account). Furthermore the military member must reside in the state not due to military orders, claim the state as his or her state of legal residence, or agree to the court’s jurisdiction before the court has the authority to divide the retirement plan. By way of example, let’s say a wife wants to get divorced, she and her child have lived in Colorado at least six months, husband, a military member, lives in Kansas but wife was able to get him served in Colorado when he came out for a visit. In those circumstances, even though Colorado has the jurisdiction to grant the divorce, decide custody, spousal support, child support and generally divide property and debt, Colorado would not be able to order the division of husband’s military retirement account unless husband agrees.

Another consideration is how to ensure the receipt of the retirement benefits if the military member predeceases his or her ex-spouse. A former spouse can basically ensure his or her interest in the retirement plan through a survivor benefit plan. However, there is a monthly cost associated with such plan and will not always ensure 100% of the ex-spouse’s interest in the retirement plan. Also, if the ex-spouse re-marries before the age of fifty-five, he or she will lose any eligibility to receive survivor benefits. Therefore, it may be more advantageous to simply ensure your interest in such retirement plan through a separate life insurance policy.

Former spouses can sometimes enjoy the benefits of military membership after divorce (such as medical, commissary, access to military exchanges, etc.). If the parties were married at least 20 years, the military member served for at least 20 years and there was at least a 20 year overlap between marriage and military service, the former spouse may be entitled to such benefits (but remarriage would terminate and/or suspend such benefits). If the parties were married at least 20 years, the military member served at least 20 years, and there was at least a 15 year overlap between marriage and military service, the former spouse could receive one year of transitional medical coverage.

This is not a comprehensive list of all financial issues related to Denver divorce and military membership, or a list of all issues to consider to ensure full protection, as it is not possible to cover all such issues in this blog post. However, the intention is to give information regarding some of the main financial considerations when one or more parties to a divorce is a member of the military.

Parenting Time

One main question that arises when a military parent deploys is who will care for the child during the deployed parents scheduled parenting time. If the party’s custody agreement/orders consider an arrangement in the event of deployment, the court will generally follow such unless one of the bases for modification are met or the court does not think the agreement is in the child’s best interests. If there is no agreement or order designating who should care for the child during a parent’s deployment, the court can hold an expedited hearing and take telephone testimony. The court can order that a nonparent that is an adult family member of the child or has a close and substantial relationship with the child (physical care for at least 182 days) can care for the child during a parent’s deployment. For example, if a remarried parent deploys, the court may allow the parent’s new spouse to care for the child during such parent’s deployment.

Clearly military membership comes with its own unique set of issues related to divorce and custody cases and it is important to consider all such issues before proceeding with your family law matter.