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Military Divorce

military_divorce1Colorado Military Divorce

Going through a divorce where one or both spouses are service members is, for the most part, very much the same procedure as any other divorce. However, the issues that arise in a military divorce are important and often very costly if not handled properly the first time. Military divorces involve allocations or divisions of military retirement plans or Military Pensions, Thrift Savings Plans (TSP), Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS), VA Disability, Life Insurance, Hazard Pay and tax implications of active-duty military assignment pay, and Survivor Benefit Plans (SBP). The purpose of this section is to highlight the key differences which may arise in your divorce.

The Drexler Law Group understands the fundamental and important differences between a civilian divorce and a “military divorce” in which a current, former or retired service member is a party to the divorce. Military divorces involve analysis of the court’s jurisdiction over servicemembers, the components of a divorce (including whether the court has jurisdiction to touch your military retirement) as well as an analysis on the unique rules which govern the division of military retirements. Moreover, our attorneys understand the impact of deployments on parenting, custody and visitation and we work with our clients to craft parenting plans that make sense for military family and their children.

 

Jurisdiction

To obtain a divorce in Colorado, you must be a resident of the state of Colorado. Normally, merely residing in the state will qualify you as a resident; but special circumstances apply to military members because service members can elect a state of residence, and their elected state of residence is frequently not the state in which they physically reside.

According to Colorado Law,

  • If the service member is only in Colorado because of orders and has not otherwise taken steps to become a resident of Colorado (i.e. registered to vote, obtained a driver’s license, transferred insurance, opened a bank account, etc), the courts do not have jurisdiction over that individual.
  • Only one spouse needs to be a resident of Colorado to file for a divorce; so in the event that one spouse is a service member and one spouse is not, jurisdiction is generally not a problem.
  • Even if Colorado can exercise jurisdiction over a servicemember (called personal jurisdiction), the court may not have jurisdiction to divide a military retirement unless the service member initiates the divorce proceedings.

Again, if a non-service member resident spouse files for divorce against the service member non-resident spouse, Colorado courts may not be able to divide the military retirement depending on the particular circumstances. To obtain orders regarding the division of the military retirement in that specific case, it may be necessary to file an action in the service member’s state of residence. The attorneys at The Drexler Law Group can advise you whether it makes sense to protect your military retirement or whether it’s more beneficial to divide the military retirement in Colorado and avoid a second legal proceeding in a different state.

 

Military Retirement, Military Pensions and Disability

In Colorado, the value gained in or appreciation in any retirement account during the the marriage is considered a divisible asset, and military pensions are no different. Military pensions are divided based upon the number of months of the marriage which overlap the number of months of military service.

  • Call the Drexler Law Group to discuss the multiple calculations and methods to divide or protect a military retirement including a present-day lump sum distribution, a formula-based distribution (also called theHunt/Gallo formula) or a reserve jurisdiction method.
  • Depending on your particular circumstances and financial position of you and your spouse, you may be able to better protect what is the single largest asset in many military families, your hard-earned retirement. If you are a non-servicemember spouse, it’s critically important to understand the various methods of dividing a military retirement and which method may be to your ultimate benefit.
  • Special rules apply when a service member accepts separation pay or other benefits in the place of retirement. Those payments may or may not be divisible, depending on the nature of the payment.
  • VA Disability pay is not divisible by Colorado courts. So, to the extent that a service member elects to take a portion of their retirement pay in the form of VA Disability, the non-service member spouse would not receive a share of that money. That’s not the final chapter though as a spouse can make arguments for a disproportionate share of other assets or perhaps additional spousal maintenance. It’s important to consult an experienced military divorce attorney to discuss the impact of disability pay and the anticipated arguments that could expose the servicemember to other financial obligations especially since the VA Disability counts as income for the purposes of child support and spousal maintenance calculations.

 

Service Members Civil Relief Act (SCRA)
(commonly referred to as “Soldiers and Sailors”)

military_divorce2The SCRA protects the service member from having a court case proceed against them during a time in which the service member’s active duty prevents him or her from appearing in court. The Act was written to address primarily civil judgments (i.e. people or companies suing a military member in the servicemembers absence). However, the SCRA encompasses or includes divorce, dissolution, child custody, and legal separation proceedings as well as any post-decree motions such as modification of parenting time or parenting plans, child support and decision making (i.e. physical and legal custody).

Depending on the individual circumstances, the service member may decide not to assert the protection of the SCRA and proceed with the action from a distance. The Drexler Law Group prides itself on the ability to server our soldiers and service members as they continue to serve us overseas or in combat areas. If a soldier has access to a phone an occasional access to email, we can often accommodate the soldiers schedule and coordinate court appearances by phone if the service member is motivated to pursue his or her case from afar.

  • Accommodations can normally be made for the service member to appear by telephone at any stage in the proceeding.
  • If the service member opts to stay the proceedings during his or her absence, the case simply does not progress until after the service member returns. Speak to an attorney at The Drexler Law Group to discuss how to formally assert your rights under Soldiers & Sailors (the SCRA).

 

Family Support

Unfortunately, many spouses find themselves in a state of limbo because they have a service member spouse who deploys before the courts can enter an order for child support or spousal maintenance. In these cases, the service member is required to provide for family support, and each branch of the military has its own rules for the amount of support required.

The civilian divorce and family law courts are not in control and do not have jurisdiction over the military when it comes to determining the level of military family support. Often, the military will instruct the soldier or service member directly as to his or her financial obligation. This military command will be binding in most cases unless and until the civilian divorce or family law court issues an order for child support, family support or spousal maintenance (alimony). Each of the military services has a regulation requiring its servicemembers to support family members upon separation, in the absence of an agreement or court order. Whether it makes sense to immediately request an order of support from the family law courts is a matter of strategy. Contact The Drexler Law Group for more information and for a candid and straightforward analysis of your particular situation.

Locally, you can contact one of the following legal assistance numbers for guidance on military family support requirements:

  • Fort Carson: 526-5572
  • Peterson AFB: 556-4500
  • Air Force Academy: 333-3940

Contact The Drexler Law Group if it’s time to file a Colorado divorce, legal separation or custody case. Our Colorado military divorce attorneys know the law and important military regulations affecting family support, child support, and spousal maintenance (or alimony).

 

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