Why You Need a Colorado Military Divorce Attorney
Military members are often forced to be flexible to accommodate the demands of being a service member, which may put extra strain on families and marriages. Unfortunately, divorces can be complex and even get messy when trying to settle disputes with an angry ex. We at The Gasper Law Group understand the issues affecting military members and we work hard to help them find the answers they need. Contact our Colorado Springs law firm immediately to discuss your situation with our experienced military divorce lawyers.
Going through a divorce where one or both spouses are service members is, for the most part, very much the same as any other divorce; however, there are some key differences that may arise in your military divorce.
In order to obtain a divorce in Colorado, you must be a resident of the State of Colorado. Normally, merely residing in the state will qualify you as a resident, but there are special circumstances for military members because service members are allowed to elect a state of residence, and their elected state of residence is frequently not the state in which they physically reside.
The rule in Colorado is that if the service member is only in Colorado because of orders and has not otherwise taken steps to become a resident of Colorado (i.e. registered to vote, obtained a driver’s license, opened a bank account, etc), the courts do not have jurisdiction over that individual. Only one spouse needs to be a resident of Colorado in order to file for a divorce, so in the event that there is one spouse who is a service member and one spouse who is not, jurisdiction is generally not a problem.
The only difficulty is when the non-service member resident spouse files for divorce against the service member non-resident spouse, Colorado courts may not be able to divide the military retirement depending on the particular circumstances. In order to obtain orders regarding the division of the military retirement in that specific case, it may be necessary to file an action in the service member’s state of residence.
Servicemembers Civil Relief Act
The SCRA (commonly referred to as “Soldiers and Sailors”) is designed to protect the service member from having a court case proceed against them during a time in which the service member’s duty prevents him or her from appearing in court. The act was written to primarily address civil judgment, but it does encompass dissolution or any post-decree motions.
Depending on the individual circumstances, the service member may decide not to assert the protection of the SCRA and proceed with the action from a distance. Accommodations can be made for the service member to appear by telephone at any stage in the proceeding. If the service member opts to stay the proceedings during his or her absence, the case simply does not progress until after the service member returns. Unfortunately, many spouses find themselves in a state of limbo because they have a service member spouse who deploys before the courts can enter an order for child support or spousal maintenance. In these cases, the service member is required to provide for family support and each branch of the military has its own rules and laws for the amount of support required.
Military Child Custody
At any moment, a uniformed service member can be deployed to go to work for months across the globe. Our military divorce lawyers can help you build custody around leave and around the unpredictable nature of your schedule. It is important to build something that is also beneficial for when you are back home or done with your service.
There are three additional considerations under custody in the context of military divorce in Colorado. One is the current custody status. If the parents are divorced and custody is with the parent who is now getting deployed, there has to be a written family plan. A lawyer will help the parent with custody draw up a family plan that includes a designated power of attorney. That way, the child’s financial needs will be taken care of while the parent is away. This family plan must also designate the person to take care of the child. The military defines a child as being under 19 years of age, and any anointed party to take care of that child must be an adult of at least 21 years old.
The second consideration is the existence of the other parent. Typically, the law expects the other parent to assume legal custody when one parent is deployed. There are two exceptions to this. One being that the other parent is legally barred from having custody (due to incapacitation or being abusive) and the second case is where both parents get deployed. If this happens, both parents will be required to have written consent on where the children stay and how they are provided for. The family plan must have all details, including how the children will be transported and how all their expenses will be met. When getting divorced, trying to work together to create a plan can be complex and challenging; however, our experienced Colorado divorce attorneys can help draw up a plan that is acceptable to both parties in the children’s best interest.
The third consideration is the duration of the deployment. If the parent with custody will only be away for a few weeks, they can draw up a plan for short-term custody. Short-term custody is typically given to a person, more often than not a relative or close family friend, in the local area where the military parent stays. The idea is to reduce disruption in the child’s life. There is also a plan for long-term custody, where the parent is away for months. No matter what custody arrangement needs you have, our military divorce attorneys can provide the right guidance.
In Colorado, the value gained by any retirement account during the course of the marriage is considered a divisible asset, and military pensions are no different. In a military divorce, service member pensions are divided based upon the number of months of the marriage which overlap the number of months of military service.
As an example, assume the service member began service 10 years prior to the marriage, left the service 2 years into the marriage, and re-enlisted after the divorce for a total of 20 years of service. The number of months of marriage overlapping military service is 24 and the total number of months of military service is 240, so the percentage of the military retirement which was earned during the marriage is 10%. In a military divorce, the non-service member is entitled to half of that 10%, giving the non-service member spouse 5% of the total retirement payments once the service member spouse begins receiving them.
There are special rules that apply when a service member accepts separation pay or other benefits in the place of retirement. Those payments may or may not be divisible, depending on the nature of the payment. VA Disability pay is not divisible by Colorado courts and so, to the extent that a service member elects to take a portion of their retirement pay in the form of VA Disability, the non-service member spouse would not receive a share of that money. However, the VA Disability does count as income for the purposes of child support and spousal maintenance calculations.
Contact Our Colorado Springs Military Divorce Lawyers
The experienced divorce and family law attorneys at the Gasper Law Group can address any divorce-related issue, from spousal maintenance and child support to division of assets and debts. We will work on your behalf to protect your interests and fight for the best result possible. Contact our Colorado Springs military divorce lawyers for a free initial consultation.