How Active Duty Can Affect Military Spouses Facing Divorce

Divorce isn’t easy for anyone, but when your partnered with a servicemember on active duty, or even a veteran, there are added challenges you will need to prepare for. Find out what military spouses facing divorce need to remember before filing their divorce.

In this blog post I will review five issues military spouses facing divorce have to think about that civilians may not consider. From military pensions to the effect of active-duty deployment on parenting time, I will discuss matters that can complicate military divorce in Colorado, and explain how a divorce lawyer with military experience can help.

1. Military Service Members Use Civilian Courts & Lawyers for Divorce

Even if both spouses are active-duty military, the government still considers divorce a civil issue. That means you will need to file for divorce in a civilian court, and hire a civilian lawyer. While JAG officers may be able to provide guidance and advice, they will not be able to represent you in the Colorado court system.

To file for divorce in Colorado, one of the parties must be domiciled in Colorado for 91 days prior to filing the petition. Simply being stationed in Colorado does not necessarily mean you can get divorced in Colorado. If domicile is at issue, the court must hear evidence of intent, which might include; maintaining a Colorado driver’s license and/or vehicle license plates, voter registration, ownership of real estate in Colorado, or written/oral statement to third parties. With over 30,000 active duty military members stationed in and around Colorado Springs, the courts here know to pay close attention to the issue of whether or not a servicemember is domiciled in Colorado when deciding if the state has legal authority (jurisdiction) over the divorce action.

2. Active Duty Can Slow Down Your Divorce

In every divorce case in Colorado, the party who files for divorce must “serve” the other party with copies of the paperwork. Legal service of process makes sure the responding party knows the case is happening and has an opportunity to participate in the division of property, custody, and parenting time. It can be very difficult for a military spouse facing divorce to serve an active-duty partner, especially if he or she is deployed overseas. In most cases, the deployed service member will need to voluntarily accept service in order to proceed with the divorce. If your spouse is deployed or stationed over seas it is important to contact a skilled military divorce attorney prior to filing the divorce.

Even after the active duty servicemember is properly served, he or she can still slow down the divorce process. The “Servicemembers Civil Relief Act” (SCRA) says that active-duty military spouses can request a “stay”, which pauses a divorce action for up to 90 days, if his or her military duties would prevent participation in the court process. If the servicemember’s duties continue to interfere, the court can continue to grant extensions beyond 90 days, but eventually the case will be allowed to proceed.

3. Your Child Will Have Benefits You Don’t After Divorce

If you are a long-time military spouse, you are probably used to having access to health care, housing, and other benefits as a result of your military status. However, military spouses facing divorce are also facing a loss of many of these benefits, depending on their circumstances.

For example, former military spouses often lose access to the lifetime health insurance coverage available to servicemembers and veterans called TRICARE. To qualify for ongoing TRICARE coverage after a divorce, you will need to meet the 20/20/20 rule:

• 20 years of marriage
• 20 years of service
• 20 years of overlap

If you don’t qualify for TRICARE you may still be able to enroll in the Continued Health Care Benefit Program (CHCBP), but that could only extend for 36 months and will end if you remarry. In the meantime, children of servicemembers and veterans will continue to be eligible for TRICARE until age 21 (or 23 if enrolled in college).

4. Military Spouses Facing Divorce Have Options For Retirement Assets

One aspect of military divorce that many civilian attorneys overlook is the variety of retirement assets and options available to military spouses. In civilian life, most parties have a 401(k), or possibly a pension, rarely both. But depending on the elections you and your spouse made while enlisted, the length of your marriage, and negotiations during the divorce process, you could have a claim on your spouse’s:

• Military pension (but not veteran’s disability benefits)
• Thrift Savings Plan (similar to a 401(k))
• Survivor Benefit Plan (a death-based annuity)

Your children may also receive child support based on a veteran’s combined pension and disability benefits, in addition to any civilian income earned after your spouse retires.

Determining the proper value of a military spouse’s retirement assets can be complicated, and requires specialized knowledge and experience. Even after you have negotiated a settlement or the court has ordered that you receive certain retirement assets, your family law attorney will need to ensure that specific elections are made and forms filed so that you can receive the retirement benefits you were awarded in the judgment of divorce.

5. You Will Need to Plan for Deployment In Parenting Time Schedules

Most divorce and custody cases end with a final order that controls child custody and parenting time. This order generally sets out who the children will stay with on specific days, where they will go to school, and how they will spend holidays. Normally, changing that schedule requires the consent of the other parent and/or an order of the court.

Military parents have less control than most over when they will move far from their children or will have to take a sudden assignment overseas. When military spouses facing divorce negotiate for custody and parenting time, they know whatever they come up with will likely have to change the next time the active duty spouse is reassigned or deployed.

To avoid frequent trips to the courthouse, military spouses facing divorce should consider a custody plan that anticipates these moves and makes arrangements for them ahead of time. The specifics of any parenting time plan can be tailored to the individual family’s needs, but here is an example of what a military spouse’s parenting time plan could look like:

— Mother and Father will share custody on a week-on, week-off basis.

— Should Mother be reassigned to a military facility between 50 and 150 miles away from Father’s residence, Mother shall be awarded custody on weekends, and Father shall be awarded weekdays.

— Should Mother be reassigned to a military facility more than 150 miles away from Father’s residence, Mother shall be awarded custody during any school break longer than 5 school days, and Father shall be awarded the school year.

— Should Mother be deployed overseas or receive an assignment that makes physical parenting time impossible, Mother shall receive liberal and frequent telephone and video-conference parenting time with the minor children no less than 3 times per week during the period of deployment.

This sample parenting time schedule lays out possibilities that account for future moves, and avoids the need for future motions to modify custody based on the active duty parent’s military assignments.

Military spouses facing divorce have a lot more to think about than their civilian counterparts. From parenting time plans to pensions, when the military gets involved, you need an attorney who knows the rules and regulations. At Aviso Law, LLC, our divorce lawyers are veterans themselves. We know the issues facing military spouses and active duty servicemembers, and we are here to serve you and your family during the divorce process. Contact us today to schedule a consultation.

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