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. The purpose of this article is to highlight the key differences which may arise in your military divorce.
Jurisdiction. 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.
Military Pensions. 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 year 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 one-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 which 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.
Servicemembers Civil Relief Act (commonly referred to as “Soldiers and Sailors”) The SCRA is designed to protect the servicemember 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 for the amount of support required.