If you are a member of the United States military or are married to a member of the military and are contemplating filing for divorce, it is important to understand how the proceedings can differ from non-military divorces. Military divorces are affected by both state and federal laws regarding jurisdiction, the rights of the parties, and division of assets.
Residency and Jurisdictional Requirements
One of the first steps in a divorce is determining in which state the divorce should be filed. Members of the military are often required to move from state to state or spend time overseas. In Colorado, at least one spouse must reside within the state for 90 days prior to filing a petition for divorce.
If you are the petitioner in a divorce, you must serve your spouse (the respondent) with the petition for divorce along with a summons. This is a strict requirement for the court to have jurisdiction to hear the case. If a party to be served with divorce paperwork lives nearby, this is often a simple process which may only require hiring a process server to deliver the paperwork. Service of process can also be waived if the respondent signs a consent form.
If a service member is overseas, serving them with divorce paperwork may be more difficult, especially if the service member is stationed in a hostile area. However, if the service member can be properly served with paperwork while overseas, this is considered valid service.
Members of the military can request a stay of the proceedings if they are on active duty pursuant to the Servicemembers Civil Relief Act (SCRA). The purpose of this act is to allow service members to focus on their defense duties without worrying about how an inability to appear in court for a hearing could affect their case. Relief under this act will stay proceedings while a service member is on active duty and up to 90 days after active duty ends.
Division of Retirement Benefits
Service members should be aware of how a divorce could affect their military benefits. Military retirement accounts are considered marital assets subject to division in divorce and are subject to division in a divorce case even if the service member is not yet receiving benefits. In many cases, this can be one of the most valuable assets in a military divorce case. It may be possible to waive division of this asset by agreement, in some cases.
When creating a parenting plan, consider how a service member's deployment could affect the plan. When making custody determinations, courts will make decisions based on the "best interests of the child" just as courts do in a civilian divorce. A court will determine which parent is the most fit to care for the child, regardless of whether the parent is a service member or not.
In cases that involve child support or spousal support, military pay can be garnished to satisfy domestic support obligations. If a service member does not pay support obligations, his or her spouse can seek assistance from the service member's commanding officer. Military regulations require all persons serving in the military to fulfill all support regulations.
Domestic Violence and Military Divorce
While Colorado is a "no-fault" divorce state, the U.S. government offers relief to family members who have been victims of domestic violence. If a member of the U.S. military is discharged for committing abuse against a family member, a spouse and any dependent children may be entitled to compensation for up to 36 months.
Contact a Colorado Springs, Colorado Family Law Attorney
If you have questions about military divorce and custody, contact Colorado attorney Brett Chalmers to schedule a consultation.