No matter the kind of divorce you might be going through, the process can be emotionally draining and complex. On top of that, if you are going through a military divorce, you need to take into account that you might need to meet some special requirements and follow specific rules that apply to US service members and their spouses when divorcing.
Some of the differences between civilian divorces and military ones include matters of compliance with support payments, service of process, filing requirements, or residency as well as dividing military pensions.
If all those elements sound like a hassle to you, the good news is that you don’t have to be alone in the process. Our military divorce attorneys at Brighter Day Law are highly experienced with these types of cases and are ready to protect your interests while making the process of your divorce as smooth as possible.
What Is The Difference Between Military Divorce and A Civilian One?
At this stage, you might not have the concept of military divorce clear. While the process for divorce is very similar if not identical to one of the civilian divorces, military divorces are different in some important characteristics which you should be aware of. Military couples need to consider other factors, in addition to those that characterize civilian divorces.
For example, military divorce includes more federal regulations that need to be respected. Judges need to take into account the military benefits and retirements and consider them as divisible assets. Additionally, it is important to note that military personnel tends to claim residency in states that are different from the one they reside in. That can be the example of a couple living in Colorado by residing in New York, for instance.
Because of the different nature of military couples and deployments, custody arrangements might also be different from the traditional civilian divorces.
Moreover, when one party is an active service member of the US military and he or she wants a divorce, it is important to know some important characteristics of the divorce you should be aware of. For a court to have jurisdiction over the military member on active duty can be trickier than with a civilian because:
- With a party overseas, you can make use of the military to formally serve your spouse
- The military member has the right to refuse the service’s acceptance if needed
- In case you cannot do it through the military, you can make use of the court to serve members but keep in mind that only a few courts will have the power or the means to send a member to serve the military member abroad
- Most of the time, you will need to wait for the military spouse to come back home before starting the process of divorce
Filing For A Military Divorce
Generally, the procedure and the form of military divorces are very similar to those of civilian cases. However, military divorces have additional hurdles to be dealt with, especially considering the complexity involving the jurisdictions and the court’s power to hear a case.
Issues with the Jurisdiction – Colorado can only have subject matter jurisdiction to grant a divorce if one of the parties getting the divorce is a resident in the same state. In the case of one member of the couple being civilian working n Colorado, it might be enough to be granted the divorce under the Colorado Law.
It is very common for military personnel to be legal residents of a different state to the one they are stationed in. That means that you might have problems with the jurisdiction. But if one of two spouses agrees to change his residency to Colorado, the problem is solved.
Personal Jurisdiction – Colorado law requires a basis for jurisdiction in case no member is a Colorado resident. That would allow the court to have power over that person and to proceed with the divorce. That can be achieved by filing a petition, consenting to jurisdiction, having one military member served in Colorado, or having matrimonial domicile in the state.
Military Retirement Issues – with a serving military member having served with the Summons in Colorado, without being resident, the federal law needs a separate basis to grant jurisdiction before the court and to have the right and power to initiate the military retirement division.
Can I Start With the Divorce Having The Spouse Serving the Military Still Deployed?
The quick and simple answer to such a question is no. Without the consent of the member in the military, you won’t be able to move forward with the process. It is better to wait for the spouse to come back from deployment before getting started with the proceedings of the divorce.
If you want to start the process with one spouse overseas, you would need a functional government following the Convention by The Hague on the Service Of Process overseas. The bad news is that in most cases, the military deployed on government that does not obey such a convention, Generally, you will spend energy, time and money unnecessarily as during that time it might be that the military member gets dismissed.
Furthermore, even if you did find a way to proceed with the divorce while one member is on active duty or deployed, the servicemember’s Civil Relief Act gives military members the right to slow down the process when the service has an impact on their ability to participate.
How To Know What State to File The Divorce In?
One of the first steps with military divorces involves determining the right court hearing for the case. Couples need to prove residency in the state they filed for divorce. In Colorado, one or both spouses need to be resident in the state for more than 90 days. You can prove residence through a driver’s license, an LES statement, a voter registration card, or proof of property.
You can apply for residency only for the sake of the divorce but one or both members of the couple needs to achieve residency at least 90 days before officially filing for divorce.
Issues Concerning Pension Division
Military pensions tend to be a valuable asset when it comes to military divorces. They are treated under the Services of Spouses’ Protection Act, also referred to as USFSPA.
Such an act states that the military pension should be divided by the state court judge. This federal legislation protects the pensions and states that the state of residence of the spouse serving the military has the right to divide the military pension during the divorce. The law gives the spouse the right to a part of the retirement pay of the military member, as military pensions are considered as “marital assets” under the law of Colorado. Often, military retirement is one of the most valuable assets in military divorces filed in Colorado.
The act was recently updated to state that the military spouse’s right to the pension will be frozen at the current value of the pension when the divorce was concluded. This essentially means that future promotions or any service extensions that might affect the final pension amount will not be divided into the two former spouses.
Keep in mind however that the court might not have the right to divide the pension. That is the case of the divorce being processed in a different state from the one where the spouse in the military resides. Remember that the amount divided and given to the spouse cannot be higher than half of the military member’s disposable income.
The legal team at Brighter Day Law has extensive experience with all of the complex legal issues that divorcing couples may face, and we are ready to provide you the legal counsel you need during this challenging time
Can A Service Member Slow Down the Divorce?
Usually, when a spouse serves divorce papers to the other spouse a formal response or an answer is required within a few days. The court goes forward with scheduling the next steps like meditation and hearings before the court. All this might change if one party is a military member on active duty.
Under the SCA Act, a military service member is allowed to delay the proceedings of a divorce or other claims (including child custody, child support, property division, spousal support, and military division) if their duties do not allow them to participate or respond to the court. The initial stay is 90 days, but it can get extended, even if a divorce cannot be postponed forever. The intend is to proceed as soon as the duties of the military service member do not interfere with the divorce process. To have the right to a “stay”, you need to make a written request.
Should I Hire a Military Divorce Attorney?
Military divorces require special knowledge that does not apply to the traditional civilian divorces. This is why you should be backed by professional and experienced family lawyers that can handle such cases. Here at Brighter Day Law, our family law attorneys can provide you with the right support and to protect your interests while making you aware of the different laws that might apply, as well as your rights, and much more. Talk to our divorce lawyers with expertise in military divorce cases today!