What is Different About a Military Divorce?
What are the main differences with a military divorce?
Colorado has six military installations and over 30,000 active-duty military members stationed here, so the question of how a military divorce differs from a civilian one comes up frequently.
While some of the regulations and consequences of a military divorce in Colorado differ from a standard divorce, the divorce process here is identical.
In fact, legally, there is no such thing as a military divorce in Colorado as they are the same as “normal” divorces. The term may be used by lawyers and military personnel, though.
The procedure and forms to fill in are identical for civilian and military cases but it is rarely a straightforward process – and military personnel on active duty have additional considerations concerning jurisdiction and the power of the court to hear the case.
For instance, Colorado has residency requirements for a divorce case to be heard here. At least one of the spouses must be a Colorado resident for at least 90 days before the filing of the divorce action. While this requirement is easily satisfied in most civilian divorces, if both spouses are stationed elsewhere in the military, it can create jurisdictional challenges unless one of the spouses changes his or her domiciliary status to Colorado.
There are also additional challenges when it comes to the financial consequences of divorce. Military personnel and their spouses are entitled to retirement pay or a pension. These are considered divisible marital assets in divorces in Colorado but most military personnel are stationed away from their home state.
If a non-Colorado resident is served with a summons in the state, consent must be provided to divide the military retirement under the state property division laws.
Which state has jurisdiction over the divorce?
In legal terms, a court with subject matter jurisdiction has the authority to hear a case.
Because of the high numbers of military personnel from other states stationed in Colorado, we often get asked about the state that will have jurisdiction over divorce proceedings.
There is no simple answer. However, say that you were married in one state and have lived in several other states or countries since and now live in Colorado on or off a military installation. Your Leave & Earnings Statement (LES) says that you are domiciled in another state. Perhaps your spouse has a job in town and pays income tax to the state, though.
Which state has jurisdiction over the divorce? In this case, Colorado could not hear the case unless one of the partners is classified as a Colorado domicile for at least 90 days before filing for divorce.
Without the LES and driver’s license to back up the claim of Colorado domiciliary, it will be difficult to convince a Colorado court that it has jurisdiction.
So, the case would need to be filed in another state where at least one of the spouses meets the residency requirements for divorce.
Which state should you file for divorce in?
You need to file the divorce action in a state that has subject matter jurisdiction, i.e., the authority to hear your case.
Being stationed in Colorado is not enough. Unless you or your spouse have been a Colorado resident for at least 90 days before filing for a divorce, and you have the appropriate documentation to back this up (usually your LES and driver’s license) you will need to file for divorce in another state where one of you meets the residency requirements.
Proof of residence such as voter registration or proof of property ownership may be enough but unless you also pay taxes in Colorado, it is unlikely that the court will accept your case.
Note that you can change your domicile for the specific purpose of filing a divorce action (though there may be tax implications of doing so). You will still need to wait 90 days before filing the suit.
What happens to the children in dual-military divorces?
Many military divorces involve two active-duty military members, adding complexity to child custody and parenting responsibilities if children are involved.
Unless these matters are resolved between military parents through collaboration, negotiation or mediation, the court will need to determine how the best interests of the child are served – as in any civilian divorce.
This may require the intervention of child care and custody experts before a final decision can be made by the judge.
Generally, it is preferable in Colorado for both parents to be involved in raising their children and military parents will have to work around the deployment obstacles that are presented for the best solution possible for the child.
What is the impact of military divorce on benefit plans?
The Survivor’s Benefit Plan provides retired military members with an income to support their spouse and minor children should they pass away.
A portion of the member’s retirement check is deducted each month. If he or she dies, the spouse will receive 55 percent of the check until he/she reaches the age of 62, at which age it is reduced to 35 percent.
After divorce, the spouse remains eligible for coverage by the Survivor’s Benefit Plan benefits as a potential beneficiary but this may be hotly contested in court.
If you want to claim this coverage as a former spouse, you will need to submit the correct paperwork with the military within one year of the coverage being awarded or you may get nothing. You may also need legal representation to help you justify the claim in court against a reluctant retiree who is being asked to give up a large portion of his or her retirement check.
Note that benefits end if the receiving spouse remarries before the age of 55. If the retiree dies and leaves no surviving spouse, no payment is made to anyone.
What is the impact on SGLI beneficiaries?
Because child support and maintenance payments stop when an obligor dies, family law courts in Colorado order that life insurance policies must be held by military personnel to protect families in the event of death.
Servicemembers’ Group Life Insurance (SGLI) is life insurance for military members. If you designate SGLI to be paid “by law” as is common in military wills, this excludes an ex-spouse from beneficiary rights even if he or she previously received spousal support.
You may name an ex-spouse as a beneficiary but SGLI is often overlooked and the “by law” designation is commonly used.
Need legal advice for a military divorce?
Few divorces are straightforward when it comes to custody, parenting and property division issues. Being in the military adds some complications that you need to be aware of and we have covered only some of them here.
If you and/or your spouse are considering divorce, speak to an attorney at Colorado Legal Group who understands the complications and unique issues that can arise with military divorces. We provide a free case evaluation and can advise you of your legal options.