How Does Divorce Work In The Military?

On July 25, 2022

Learn what factors affect how divorce works in the military and why you need an attorney who specializes in this complicated area of family law.

The End of a Military Marriage Involves Unique Laws and Complicated Issues

Practicing family law here in Colorado Springs, a community with tens of thousands of service members and their families, people frequently ask me, “how does divorce work in the military?”

While all marriages take work, and all couples experience difficulties from time to time, military families face a wide variety of challenges unique to a life in uniform. Sudden and repeated deployments, relocation, complicated benefit programs, housing, insurance, and VA matters are stressful. When you combine these factors with the risks and sacrifices involved in serving our country, these stressors can fracture even the most resilient marriages. When that happens, and military couples decide to divorce, they must navigate a new set of unique issues.

Navigating a military divorce is something no soldier, sailor, airman, Marine, or civilian spouse should do without the counsel of an experienced military divorce lawyer who recognizes the difficulties of military life before, during, and after a divorce.

Even seasoned divorce attorneys may not know how to navigate the complexities of how divorce works in the military if they don’t regularly handle these matters. Active and retired service members and their civilian spouses up and down the Front Range need fair, equitable and experienced representation so they and their families can move forward to the next chapter of their lives with clarity and confidence.

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Two Sets Of Laws Affect How Divorce Works in the Military

One fundamental difference between how divorces work in the military and how they work for civilians relates to the law that will govern the process. Colorado law applies to divorces for civilians in the state, but military divorces involve both Colorado and federal law.

The federal Uniformed Services Former Spouses Protection Act (“USFSPA”), which applies to all military divorces, provides that law and procedures of the state where the divorce proceeds will apply to matters such as child custody and visitation, child support, spousal maintenance and support (also known as alimony), and asset protection.

But because of the complexity of military benefits and the practical hurdles of moving forward with a divorce while a service member is deployed overseas or in another state, specific federal statutes and military regulations are also involved in Colorado military divorces.

Where Will The Divorce Proceed?

Since military couples often live far apart for extended periods or frequently move between states, determining which state should hold jurisdiction over the divorce can be complicated. For a Colorado court to have jurisdiction to hear a divorce case, at least one spouse must be a Colorado resident.

The state listed on a service member’s Leave and Earnings Statement (LES) will be considered their state of residency. They must also have other indications of residency, such as a Colorado driver’s license, voter registration, or ownership of real property in the state. (Being stationed at a military base in Colorado is not enough to qualify as a resident.)

A civilian qualifies as a resident if they meet the same criteria for residency described above and have been present in the state for at least 90 days before filing the divorce petition.

How Does Divorce Work in the Military if The Service Member Is Deployed Elsewhere?

The Servicemembers Civil Relief Act (SCRA) upholds the legal rights of members of the armed forces while deployed, including their rights during divorce proceedings. SCRA protections apply to active duty members, reservists, and National Guardsmen called up for more than 30 consecutive days. Given the practical difficulties of participating in a divorce while on active duty, the SCRA allows service members to request a 90-day stay of divorce proceedings while deployed or until they can respond. A judge can extend that period if circumstances warrant, meaning a military divorce could be on hold for several months before moving forward.

What Happens To Military Pensions and Retirement Benefits?

Colorado courts use the Hunt/Gallo formula to divide military pensions and other retirement benefits equitably. This formula divides the number of months the spouses were married while one of them was in the service by the total months of military service at the time of retirement.

But other circumstances can impact how a court will treat military retirement benefits, yet another reason you should retain a military divorce lawyer to protect your interests.

What About TRICARE and Other Benefits?

The “20/20/20” rule governs how divorce works in the military with regard to the allocation of TRICARE, commissary and exchange benefits, base privileges, VA services and disability benefits, and thrift savings in a military divorce. For a civilian spouse to continue availing themselves of these benefits after divorce, all of the following must be the case:

  • The marriage must have existed for a miniumum of 20 years;
  • The service member must have served for at least 20 years, and
  • The 20 years of the marriage must overlap 20 years of the spouse’s military service.

Again, additional complexities apply to these benefits that an experienced military divorce attorney can sort through.

More Questions About How Divorce Works In The Military?

As you can see, many factors determine how divorce works in the military. As an experienced Colorado Springs military divorce lawyer, respect and professionalism are cornerstones of my practice. This is never more important than when protecting the rights of those who have served our country or the spouses who have sacrificed so much.

If you are a member of a military family going through the transition of divorce, speak with an experienced military divorce attorney today.

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