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What Military Members Should Know When Divorcing

 What Military Members Should Know When Divorcing Research on divorce in the United States has primarily focused on the impact of marital dissolution on the civilian population. However, like many civilians who struggle with balancing multiple roles, military members face additional unique challenges during a divorce. U.S. service members often experience numerous and potentially lengthy deployments, sudden station changes, and other events that can impact their divorce proceedings. 

Colorado family law statutes largely govern military divorces. However, there is a wide range of issues in the military divorce process which require a comprehensive understanding of complicated statutory, evidentiary, and procedural rules. An experienced attorney can help military members or their spouses understand their rights and remedies during and after a divorce. 

Divorce in the Military

Comparing the exact rate of military to civilian divorces is difficult as they are measured differently. However, data indicates that military service members have one of the highest divorce rates of all occupations. According to the U.S. Census Bureau American Community Survey data, the overall divorce rate among military members is about 3.09%, double the national divorce rate of 1.6%. Divorcing in the military can be an arduous and complicated endeavor. Individuals going through this process should work with a lawyer to avoid unnecessary complications. 

How Does Military Divorce Differ from Civilian Divorce?

The primary differences between military and civilian divorce are the laws governing the cases. State laws generally govern civilian divorces, whereas military divorces might involve state and federal laws. The two primary federal laws regarding military divorces are the Federal Servicemembers Civil Relief Act (SCRA) and Uniformed Services Former Spouse Protection Act (USFSP).

Federal Servicemembers Civil Relief Act (SCRA)

The SCRA provides several protections for service members. The two protections relevant to family law cases involve the stay of civil proceedings and relief from civil judgments. 

Stay of Civil Proceedings

Under 50 U.S. Code § 3932, courts may stay proceedings for at least 90 days on the court’s own motion and must stay proceedings upon application by a service member who meets specific criteria. The criteria include the following:

  • The applicant is in military service or within 90 days of their service ending,
  • The applicant has actual notice of the proceeding,
  • The application is in writing and includes relevant facts, and
  • The application includes communication from the service member’s commander that the military duty prevents appearance and leave is unavailable.

It is important to note that judges do not consider an overseas station as a criterion that materially affects a military member’s ability to appear. 

Protection from Default Judgments 

Under 50 U.S. Code § 3931(a), service members have the right to set aside a default judgment. However, if the court enters a default judgment, the military member can reopen the judgment and allow the service member to defend their position. 

Uniformed Services Former Spouse Protection Act (USFSP)

The USFSP provides authority to state courts to treat retired pay as marital property subject to division. In addition, the USFSP applies to disability compensation, calculations of benefits, the 10-year rule, and survivor benefit plans. 

5 Things to Know About Military Divorce 

Military families typically encounter challenges that civilian families do not face. These differences are more keenly seen during divorce proceedings and other family law cases. Understanding the special considerations that apply to divorces involving military families is crucial to reducing the challenges that might otherwise occur.

Jurisdiction for Military Divorce

There are typically three places where a divorce involving military members can be filed. A military divorce can be filed in the following places:

  • Where the service member resides,
  • Where the service member’s spouse resides, or
  • Where the service member is currently stationed.

Pursuing a divorce overseas can elicit additional complications. But generally, a valid and binding divorce can only be granted in the “true legal home” of one of the parties. The true legal home refers to places where either party can vote, pay taxes, own a home, or qualify for in-state college tuition. 

Division of Marital Assets 

Courts will only divide “disposable retired pay” when determining asset division during a divorce involving military members. Disposable retired pay refers to the service member’s full military pension minus certain deductions. For example, VA disability benefits are not a part of the military pension; thus, a court cannot divide it between divorcing spouses. 

10/10 Rule for Military Divorce 

However, ex-spouses may be eligible for direct payment of their former military member’s retirement benefits through the Defense Finance & Accounting Service (DFAS). Under the 10-year rule, an ex-spouse qualifies for direct payment of benefits if they were married to the servicemember for at least 10 years, and those 10 years overlapped with 10 years of military service. However, spouses who do not meet these requirements must secure retirement benefits directly from their ex-spouse rather than the DFAS. 

Tax Considerations of Military Divorce

There are various tax consequences individuals should consider during a military divorce. These tax implications impact how much a retiree can deduct from their military pension payments to their former spouse. Conversely, the non-military spouse must address the pension payments they receive on their taxes. 

Child and Spousal Support 

Divorcing military spouses must consider the military’s rules on child and spousal support in conjunction with the state’s regulations where the divorce was filed. Like civilian divorces, courts consider family support obligations by examining each spouse’s income. However, courts calculate income using a Leave and Earnings Statement. In many instances, things such BAH (basic allowance for housing), are going to be included as income when assessing child support and maintenance.

Child Custody 

A parent’s military status does not change that parent’s right to custody. However, Colorado courts may consider a parent’s military status when allocating parental responsibilities. For instance, the court may evaluate how deployment would impact visitation or custody. 

In addition, a military divorce can affect other benefits such as housing, insurance, and commissary access. An attorney can provide invaluable advice and representation during a military member divorce case. 

Learn More About What Military Members Should Know When Divorcing

If you are in the military and contemplating filing for divorce, or if you recently learned that your spouse intends on filing, it is important that you work with a divorce lawyer who has specific experience handling military divorces. At the Colorado family law and divorce law firm of Plog & Stein P.C., our dedicated attorneys take pride in helping service members navigate the often complex legal issues they are confronted with, including divorce. Our military divorce attorneys offer a 10% discount to active-duty military and veterans. To schedule a consultation with a lawyer today, reach out to Plog & Stein P.C. today at (303) 781-0322. You can also reach us through our secure online contact form.

Author Photo

Stephen Plog, co-founder of Plog & Stein, P.C. in 1999, is a dedicated family law attorney with almost two decades of expertise in Denver. Focused exclusively on family law since 2001, he excels in both intricate legal writing and courtroom litigation, having navigated cases in all Denver metropolitan area District Courts. Steve’s comprehensive background, including a Bachelor’s Degree in Psychology and a law degree from Quinnipiac University School of Law, underscores his commitment to providing insightful and personalized representation in family law matters.