Divorce can be a complex, frustrating and emotional process that can alter the lives of men, women and children for many years. But a military divorce can be even more difficult to navigate, because there are more challenges due to some of the special requirements that apply to people in the armed forces. For example, federal laws can dictate in which court a military divorce will take place, and how the court will divide military pensions. State laws can also determine the amount of spousal maintenance that a military service member has to pay. Let’s take a look at some of the issues that often arise in a military divorce.
Who Has Jurisdiction?
One of the unique aspects of being in the military is that families often have to move when a service member’s assignment is changed to another state. This can become a problem during a divorce, because a couple may have married in one state, then moved to several different states or even different countries during the course of the marriage. So the question then becomes which state has jurisdiction to handle the divorce hearing.
Legal residence typically means possessing a valid driver’s license, registering to vote in the state, paying state taxes, paying utilities, and owning property. So a service member could be stationed outside the state of Colorado, but still be considered a legal resident of Colorado, which means the state would have jurisdiction over the divorce. In Colorado, the law requires that at least one spouse be a resident of the state for 90 days or more before filing for a divorce.
But in military divorces, that law is more flexible, and couples have several choices when deciding where to file for a divorce, including:
- The State Where The Spouse Filing For Divorce Lives – This applies in cases in which the spouse filing for divorce is not the service member, and has moved from their legal residence.
- The State Where the Service Member Is Stationed
- The State Where the Service Member Legally Resides
Are There Divorce Protections For Service Members In Active Duty?
The Service Members Civil Relief Act protects service members in active duty from legal issues such as evictions, installment contract defaults, mortgage foreclosure, income tax payments, and civil judicial proceedings.
That means that a service member who is on active duty cannot be served with divorce papers until he or she is no longer on active duty.
In fact, a court can extend that time for 60 more days after the service member has completed active duty, which could mean a delay of months or years.
What Are the Rules Regarding Military Pensions In a Divorce?
The Uniformed Services Former Spouses’ Protection Act allows family court judges in each state to treat military pensions as sole property or community property, based on the divorce laws in that state.
In Colorado, the law states that the value of a military pension is based on the amount that is available when the service member retires, as opposed to when the divorce petition is filed.
But a divorcing couple can still come to an agreement about the present value of the pension, and settle the payment now, so that the non-military spouse can receive the money years before the service member actually retires.
The Need For An Experienced Lawyer
Military divorces require the expertise of a lawyer who understands the unique laws and regulations that govern these types of cases. Kinnaird & Kinnaird, P.C. has spent 30 years handling challenging family law cases, and is well versed in military divorces. Please contact us today to schedule a free consultation.