Divorce is a complicated process. From dividing assets and agreeing on parenting time, to spousal maintenance and contested separations, there are many factors that make going through a divorce complex, and most often, stressful. Unfortunately, getting a divorce gets even more complicated and difficult for the brave men and women (and their spouses) who serve our country and protect our freedoms on a daily basis.
With six military installations and approximately 34,117 active duty military members currently stationed in the state of Colorado, the family law attorneys at Modern Family Law have handled their fair share of military divorce cases and are well-versed on all the intricacies that separate them from civilian divorces.
“If you are considering dissolution, schedule a consultation with an attorney who understands the nuances involved in military divorce,” said Ashley Hughes, managing attorney at Bringing Justice Home. “The first question either one of you should ask is if the attorney has experience in military divorce or custody issues. Even if an attorney is well-seasoned but doesn’t have adequate background, the individual may be losing the right to request something they could be entitled.”
Our military divorce lawyers have compiled a wealth of information pertaining to the different aspects of navigating the divorce process as an active duty service member in Colorado to help if you’re considering filing for a divorce.
What Makes a Military Divorce Different?
“Military divorces go through the same process as any other divorce,” said Jay Cranmer, senior associate at Modern Family Law. “While they are certainly different, it’s the same process.”
While military members and their spouses go through the same procedures as civilian couples when filing for divorce, there are some additional considerations during the divorce proceedings.
For example, military personnel and their spouses are entitled to retirement pay or a pension that is considered a divisible asset, most military members are stationed in a state other than the one they claim residency in, and there are several laws and statutes that dictate how military divorces can be handled.
Determining Which State to File In
In every divorce case, the court will first determine if it has subject matter jurisdiction, meaning it is the appropriate court to hear the case. In the state of Colorado, the law requires that at least one of the members in a military partnership be a Colorado resident for at least 90 days prior to filing for a divorce to be within jurisdiction.
In order for a service member to be considered a Colorado resident, their LES (Leave and Earnings Statement) must indicate Colorado is their state of legal residence and they must have a Colorado driver’s license (or have other proof of residency such as voter registration or proof of property ownership). Being stationed at a Colorado military installation is not grounds for residency on its own.
For military spouses, having a Colorado driver’s license and being physically located in the state are the two main factors for determining residency. It’s legal for a military member, or their spouse, to seek Colorado residency with the intent to file for divorce within the state, but the residency change must be completed at least 90 days before filing for a divorce.
What Is the Uniformed Services Former Spouses’ Protection Act?
The Uniformed Services Former Spouse’s Protection Act (USFSPA) was passed in 1982 to give former military spouses the right to a share of a military member’s retirement pay. In Colorado, military retirement payouts are considered a “marital asset” and are therefore subject to division during a divorce proceeding. In fact, military retirement is often one of the most valuable assets in a Colorado divorce.
In 2016, the National Defense Authorization Act (Section 641) changed the way military retirement pay can be divided. The Act states that a former spouses’ share of the pension will be “frozen” or locked in place at its current value at the time of the divorce. This means that future promotions or service extensions that may increase the pension amount will no longer be considered when dividing the pension.
“The most surprising thing for service members is deciding what to do about their retirement pay,” Hughes said. “Most aren’t in paid status and aren’t receiving retirement at the time of divorce. However, their retirement may still be considered marital property and there are Federal Statutes and guidelines that govern what, if any portion, can be considered marital property and divided.”
The 10/10 Rule
Although a military members retirement pay may be split during a divorce without taking into consideration how long they have been in the military, the USFSPA also states that the Defense Finance and Accounting Service (DFAS) will automatically pay the former spouse’s share of the military pension if they were married for at least 10 years at the same time that the military member was in service. This is often referred to as the “10/10 rule”.
This rule does not mean that couples that are divorcing prior to the 10-year mark do not have to (or cannot) split the military pension, it only means that after 10 years the retirement will be split automatically by the DFAS, and the former spouse will be paid directly rather than their spouse writing them a check.
The Hunt/Gallo formula is the equation used to determine how much of a service member’s retirement pay is considered a marital asset. It is calculated by taking the total number of months of marriage overlapping military service, divided by the total number of months of military service at retirement. A civilian spouse is entitled to one-half of the marital portion of a service member’s retirement pay as determined by this formula.
A recent Supreme Court ruling regarding the distribution of military retirement and elected disability payments from the Veterans Administration has added another difficulty to navigate regarding division. Modern Law Family lawyers are continually researching new rulings so nothing will be a surprise to them or their clients. “Ultimately, we are still learning how this ruling will be incorporated with the courts, and it’s certainly something that will be part of a lot of cases coming up,” Cranmer said.
The Servicemember’s Civil Relief Act
The Servicemember’s Civil Relief Act (SCRA) is designed to provide certain protections for military members who are active duty or deployed. The Act allows military members to postpone or suspend certain civil obligations while deployed so they may devote their full attention to duties without causing extra stress for their family members back home.
The civil obligations that a service member is able to postpone due to the SCRA include paying outstanding credit card debt, mortgage payments, pending court trials, paying taxes, and the termination of a lease.
Since the SCRA applies to pending court trials, a deployed service member may use the Act to postpone a divorce that he/she does not want. This does not mean that the service member’s spouse can never file for a divorce, but that the case may be postponed until the service member returns from deployment, plus up to 60 days afterward.
However, if a deployed service member does not wish to contest the divorce, they may waive their protections under the SCRA and be held in “default,” allowing the proceedings to continue without them.
How is Spousal Maintenance Determined in Military Divorces?
With all of the extra allowances that make up a big portion of a military member’s pay, determining the correct spousal maintenance amount in military divorce cases requires a clear understanding of the military pay system. In Colorado, all items on an LES (including base pay, the Basic Allowance for Subsistence (BAS) and Basic Allowance for Housing (BAH)) are considered income when determining spousal maintenance obligations.
VA disability payments are also included as income for the purpose of determining the obligation. Disability payments may not be divided as a marital asset, but since they are intended to provide support for both the military member and their family, the VA payments may be defined as income for child and spousal maintenance purposes.
Zachary Chapman, associate attorney at Modern Family Law, explains that once a military divorce has been finalized, a military member’s BAS and BAH are likely to be reduced since their spouse and children will no longer be considered dependents. If the decrease is significant, the military member may ask that their child and spousal maintenance obligations be re-evaluated to coincide with their new decreased income.
Spousal Maintenance Obligation for Military Members
If a divorced service member fails to pay spousal maintenance, there are certain procedures in effect to ensure that the former spouse receives proper support. In Colorado, the court has the power to order payments be subtracted from a service member’s paycheck so that the former spouse receives a check directly.
In addition, all branches of the military have regulations requiring their members to support family members after a separation in the absence of an official court order to do so. However, this is a temporary fix and does not replace a formal court order mandating child or spousal maintenance payments.
A former spouse may seek assistance from the service member’s commander, the local JAG (Judge Advocate General) office, or the inspector general if the service member fails to meet their obligation.
“If there isn’t a court order yet but a civilian spouse complains to their spouse’s commander of being financially cut off, the commander can choose to give an allotment to the civilian spouse and it will automatically deduct from the service member’s paycheck,” Chapman said.
Parenting Plan Considerations
“Really, when it comes to the military, it’s not a problem with child maintenance, but child custody,” Chapman said. “If the service member is stationed in a different location than their former spouse, there is a natural strain on parenting time.”
Colorado does not favor either the mother or a father more in determining who will receive the primary parental custody after a divorce. However, a civilian mother is often the person who takes on the primary caregiver role in military families, since almost 85 percent of armed service members are male.
With military members working long hours and frequently traveling for TDY’s (temporary duty) and deployments, they typically face many obstacles when it comes to taking on full parental responsibilities. However, the court is still obligated to examine each parent’s ability and willingness to provide care for the child and take the best interest of the child into consideration. This means that a military member can be deemed the primary parent if they can provide the best care for the child. The military member must have a clear plan laid out for how the child will be cared for in the context of a busy military lifestyle.
If the civilian spouse is deemed the primary parent, they will typically be given parenting time and decision-making responsibilities during the majority of the year. For the service member in this situation, their parenting time would most likely be allocated during summer and other school breaks.
A common post-decree custody issue that occurs is when a service member may be deploying. The servicemember needs to consider who they would like to provide care for their children should they be deployed, and the non-servicemember spouse needs to similarly consider who will care for the children should the other parent deploy. These are areas that non-servicemember families do not have to consider, but should be addressed in any dissolution where one party is active duty military or has the potential of deploying.
Dual Military Divorces
When two active duty military members with children make the decision to divorce, allocating parental responsibility becomes slightly more difficult. In a contested case, the court will have to determine which military parent can best serve the interests of the child. If both parties wish to be the primary parent, the court may appoint a CFI or PRE to evaluate the situation and recommend a solution for a parenting plan.
Both parents may also come to an agreement in which they both play an active parenting role in the child’s life. If this happens, both parents can work together to handle deployments and other factors of military life that may prohibit one parent or another from taking on full parenting responsibilities at certain times.
The Survivor’s Benefit Plan’s Impact on Divorce
The Survivor’s Benefit Plan (SBP) is a retirement pay program available to retired military members that allows them to provide support for their spouse and children should they pass away. Upon the service member’s death, the military will deduct a partial amount of their retirement check every month and distribute it to their surviving spouse and children. The spouse will receive 55 percent of the retirement check until he/she reaches the age of 62, at which time it is reduced to 35 percent, because he/she will also become eligible to receive Social Security payments at that time.
In divorce cases, a divorced spouse is eligible to be covered by the SBP as a potential beneficiary. This can quickly become a highly-contested issue since payments for SBP payments deduct the majority of a retired service member’s disability check.
It’s important to keep in mind that there is a one-year statute of limitations for filing the proper paperwork with the military after SBP coverage has been awarded to a former spouse during a divorce case. If the paperwork is not filed in the correct amount of time, the military will refund any SBP payments deducted from the service member’s paycheck back to his/her estate and pay the former spouse nothing.
Navigating the Military Divorce Process
Going through a divorce is tough, especially when all of the stresses of military life are involved. Fortunately for military members and their spouses, free legal advice and assistance are available via each installation’s legal assistance office. These offices are there to help, but can only provide legal guidance for one spouse or the other, not both, as this would be considered a conflict of interest for the office.
JAG officers are also available as a resource for military members and their spouses considering divorce. They can help spell out the legal implications of your divorce case, but cannot represent you as an attorney in a family law court. They can, however, refer you to a civilian family law attorney, such as Modern Family Law.
The Colorado family law attorneys at Modern Family Law are knowledgeable in military divorces and are ready to help if you’re a service member or if you’re married to a service member. Don’t hesitate to contact us today for a free consultation to discuss your case with one of our divorce attorneys in Denver or Colorado Springs.
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