Those considering or in the middle of a military divorce should consult with an experienced attorney to learn about what can be divided in a divorce. A family lawyer can help military families understand how jurisdiction, property and asset division, and other issues impact military divorces.
Military Divorce in Colorado
Colorado uses the term “dissolution of marriage” instead of “divorce.” However, the words mean the same thing: the legal ending of a marriage. Given the nature of military service, many military members reside in a different state now than they did when they were married. Further, it is common for a person to be a legal resident of a completely different state than where they are stationed. Thus, the initial matter in military divorce cases is whether Colorado has jurisdiction to hear the case.
Under Colorado law, at least one spouse must reside (be domiciled) in Colorado for at least 91 days before the filing of the divorce action. The court will examine various factors to determine whether either party has a domiciliary in Colorado. Just being stationed in Colorado may not confer jurisdiction upon the Colorado courts.
What Is a Military Spouse Entitled to in a Divorce?
Colorado views marriage as a partnership and considers almost all property acquired during a marriage as “marital property.” Under this framework, courts divide all marital property regardless of the spouse’s name on the title, deed, or ownership paperwork. Courts must divide this property under the theory of equitable distribution. However, equitable means fair and is not necessarily a 50/50 split. Moreover, non-marital property is separate property and is not subject to division. Classifying separate and marital property can be challenging, but your lawyer can help you distinguish between the two as it relates to your marriage.
USFS Protection Act
The Uniformed Service Former Spouses’ Protection Act (USFS Protection Act) authorizes Colorado state courts to divide military retired pay as a marital asset. It also provides a way of enforcing child support and spousal maintenance from retired service members.
Dividing Military Retirement Pay
Military retirement is one of the most contested and valuable assets in a military divorce. The USFS Protection Act provides former spouses of military members the right to share a portion of the military member’s retired pay. Under Colorado law, courts consider non-vested military pensions as marital property. Further, the value of a military pension is based on when the service-member retires, not the time of the divorce.
Division of Retirement Pay for Active Service Members
Active service members must still consider retirement pay subject to marital property division. The 2016 National Defense Authorization Act (NDAA) governs retirement pay issues for active military personnel. Under the NDAA, the “frozen benefit rule” determines the division of military retirement.
The former partner’s retirement share is “frozen” as of the date of the divorce. As such, any post-decree promotions or increases in retirement payments are not subject to marital property division. In rare cases, Colorado courts use the net present value (NPV) of the marital share and award that amount to the spouse.
Division of Retirement Pay for Retired Service Members
Colorado courts typically use the Hunt/Gallo formula when dividing retirement pay after a divorce involving retired service members. Under this formula, courts divide the number of months of military service during the marriage by the total months that the military spouse served. The other spouse is generally entitled to half of that total.
10/10 Rule
Military retirement benefits are available to qualifying ex-spouses regardless of the length of the marriage. However, if the couple has not been married for 10 years, the service member must pay their ex-spouse directly, meaning the military retirement is not subject to a dividing order.
On the other hand, a qualifying ex-spouse may apply for direct payment of the retirement benefits through the Defense Finance and Accounting Service (DFAS) if they meet the requirements of the 10/10 rule. Under 10 USCS § 1405, creditable service under the 10/10 rule includes the years a service member was eligible to receive active duty pay. Specific periods are excluded from creditable service, such as the following times:
- During AWOL status;
- Periods of incarceration; and
- Lost time due to an injury caused by the service member’s misconduct.
Creditable years for reservists are years during which the service member accrued at least 50 points. For reference, reservists accrue 15 points every year for being in the reserves, plus an additional point for every day of actual service. However, if a spouse is married for at least 10 years overlapping military duty, it does not matter if the 10 years are all active, all reserve, or a combination thereof.
Division of Marital Debts
Military couples divorcing in Colorado must determine which party will pay any relevant debts. Courts can order the division of marital debts. But even when a judge orders one spouse to pay a debt off, a divorce does not end the spouse’s liability from the creditor’s viewpoint. This is because divorce is a settlement between the partners and does impact a creditor’s rights.
Learn More About What Can Be Divided in a Military Divorce
If you or your spouse are in the military and you believe that divorce is on the horizon, it’s important you prepare for what lies ahead. At the Colorado divorce law firm of Plog & Stein P.C., our dedicated attorneys take pride in helping those who served our country. Our firm offers a 10% discount off of the attorney’s hourly rate for active duty military and veterans. We understand the challenges that come up during military divorces, and we know how to fight to ensure our clients are treated fairly. To schedule a consultation with a lawyer today, give Plog & Stein P.C. a call today. You can also reach us through our secure online contact form.
