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.
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,
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.
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.
The 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.
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:
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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