2021 Military Divorce Guide

April 04, 2022

Military life can be very hard on a family and it is a sad reality that military marriages are more likely to end in divorce than traditional marriages because the couple is forced to spend several months, and often, years apart from each other. However, regardless of how common they are, military divorces can get pretty complicated especially for service members who are deployed overseas. This military divorce guide is designed to give you the knowledge and understanding of the complicated military divorce process.

A military divorce is completed the same way as a civilian divorce; however, because of the nature of the military job, there are some requirements that service members and their spouses are often unable to meet. Number one is the residency requirement.

It is common for military families to be from one state, get married in another, and live in a third state where they have been recently moved by the military. If they decide to file their divorce in a new state where they haven’t lived long enough to establish residency, this can pose a few problems for them.

Let us take a look at this 2020 guide to determine what things you need to consider when you or your spouse is in the military.

Can a Divorce be Initiated When the Service Member is Deployed?

If a service member is deployed overseas, serving them with divorce papers and a summons can be very difficult, especially if they are posted in a hostile area. Without the consent of the military member, the divorce proceedings cannot be initiated and the spouse will have to wait until the member returns from deployment.

An overseas service of process requires a functional government that is also a signatory to the Hague Convention on International Service of Process, which is not often the case in places where the U.S. troops are deployed. There are several privacy and security concerns with knowing where a member is located and also the country is suffering from a breakdown of civil government so there are no formal procedures to follow that are required by the treaty.

Additionally, by the time a military member and their spouse go through the money, time, and effort of service of process, the deployment may be over anyways.

What is Subject-Matter Jurisdiction?

Subject-matter jurisdiction means that the state has the authority to hear your case. Laws can vary from state to state and if a military member is seeking a divorce, they will need to check the residency laws in the state they live in. Some states allow service members to file for a divorce even if they are not a permanent resident of that place. However, in Colorado, only service members who are residents of the state can file for divorce in the state.

This rule, however, can be dismissed if they have a spouse living in Colorado for more than 90 days. For a military spouse, establishing a residence in a state is easier than the service member as they do not move around that much and they may have established some footprints in the state, such as living off-post, getting a driver’s license, opening a bank account, and getting a job.

For a military member, establishing residence is difficult as they may be deployed frequently from place to place and their legal residence does not change if they are stationed somewhere for the long term until they take steps to establish jurisdiction there.

If neither of the spouses lives in the state, then they will need to take up some measures to establish a domicile there. Subject-matter jurisdiction cannot be waived and even if both the spouses agree, the state cannot hear their case until jurisdiction is established.

If you are petitioning for divorce, you must serve your spouse with a divorce petition as well as a summons. If the service member lives nearby, the process is simple and will require hiring a process server to deliver the documentation. Service of process can also be waived if the party receiving the divorce petition signs a consent form.

What is the Service Member Civil Relief Act?

If you are a military member who has somehow been served divorce papers by their spouse, you need to file a formal response in a specific number of days. However, if the service member is on active duty, they can request for a stay of the proceedings so that the military member can focus on their defense duty without worrying about being absent from the divorce hearings.

This relief will stay the proceedings until 90 days after the service member’s active duty has ended.

However, many service members will need to get things started before they return home. If that is the case, then it is possible to hire a divorce attorney in Colorado Springs to represent a service member’s interest in their absence.

Alimony and Spousal Support During a Military Divorce

A military spouse may get support from a service member if they are entitled to temporary family support by the army or entitled to maintenance under Colorado law.

Each of the branches of military service (Army, Air Force, Navy, Coast Guard, and Marines) has a regulation that requires its service members to provide support for their families during periods of separation.

Additionally, the spouse may also be entitled to alimony under civilian Colorado law if their income is much lesser than the service member. Plus, military pay, military retirement, and Veteran’s Affairs disability in some cases may be ordered to pay for spousal maintenance and child support.

Child Support During a Military Divorce

The amount of child support during a military divorce is determined by state law and is often based on military entitlements like base pay, Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS) and other special pays. Once the amount of child support has been set by the court, it can only be changed by the court or by the consent of the other party in writing.

However, before a Colorado judge decides how much you pay in child support, service members can also get child support from the military. Later on, the court can decide exactly how much support needs to be paid based on the state’s laws and guidelines.

Typically, states order a wage assignment for the direct payment of child support. If you are given such an order, you must promptly submit it to the military pay center. The Defense Finance and Accounting Service (DFAS) is the military pay center for all military services except the Coast Guards. The wage assignment order must meet certain criteria, otherwise, it will not be granted.

You can consult your local JAG or military legal assistance attorney to find out how to wage assignments work.

Military Pension

Dealing with a military pension can be pretty tricky. The divorce court can give the non-military spouse whatever share of the pension it deems fair.

Military pensions also operate under a “10-10 rule” that provides the garnishment of the pension for property division. Under this rule, the retired pay center divides the check and then sends the correct amount to each party. The 10-10 rule means that you are married for at least 10 years while the service member was on active duty. If you have not been married for that length of time, the court will still award the divided pension but the military spouse will be responsible for making the payments directly to the spouse.

To get your pension check from the retired pay center, you will need a court order that fulfills the following requirements:

• States the name, address, and Social Security number of the parties.
• Specifies that the DFAS will make the payments.
• States the percentage amount in an acceptable format.
• Sent to the retired pay center with a DD Form 2293 with a copy of the divorce papers.
• Complies will all the DFAS rules.

You should submit your papers immediately after the divorce so that if there are any problems, you can catch them right away.

Health Care Coverage After Divorce

The non-military spouse may be entitled to two types of health care coverage.

The first option is the TRICARE coverage, which becomes effective if the couple has been married for 20 years during the service member’s service. This is also known as the 20/20/20 rule and if the period has almost been reached, you can hold off the divorce until the rule is met.

If your spouse also had another insurance coverage, TRICARE will be considered as a secondary payor and will fulfill any difference not covered by the private insurance agency.

Lifetime TRICARE coverage depends on the former spouse remaining unmarried. If they remarry, they will lose the coverage forever.

If a non-military spouse is not eligible for TRICARE, they can buy the Continued Health Care Benefit Program which may cover them for 3 years after the divorce. The spouse may get this coverage for an indefinite period of time if they are entitled to the service member’s pension, may not remarry below the age of 55, pay quarterly advanced premiums and meet the application deadline.

Get Help From a Military Divorce Attorney

When heading for a divorce, it is important for service members and their spouses to familiarize themselves with the unique legal issues that affect military divorces.

If you need help, our Colorado family law attorneys at Brighter Day℠ Law specialize in military family laws. Call us today at 719-733-9129 and we can counsel you on what steps to take to make this difficult time easier.