A military divorce is essentially the same legal entity as a civilian divorce. With military divorces, the same general laws, the same Court, and same processes apply to both. However, for a military member there are special considerations and some special laws that apply.
The Child’s Contact with the Service Member’s Family
This can be included in any parenting plan created during the divorce. Birthday and holiday celebrations or summer vacations for the Children that include the Service Member’s family in attendance , may be important to keeping a Child current and involved with their military Parent. Some military parenting plans even specify time for extended family visits.
The Service Member’s Civil Relief Act
Whether the Service Member is available when deployed or TDY or training to attend to the Court case is always a concern. If the Service Member is not available, the Servicemember’s Civil Relief Act (often called the “Soldiers and Sailor’s Act”) will allow the case to be stayed (postponed) for most further proceedings pending their return. Temporary Orders Hearings for financial support of a civilian Parent and Child or emergency hearings for the safety of a Child, will likely not be stayed. However, all other proceedings, including any final hearings for divorce or custody cases are delayed until the return of the Service Member. Some Service Members choose to keep the proceedings going and try to attend by video or phone. This can work at times, but often causes technical problems of garbled communication or dropped reception that one would expect in the field or a conflict zone. It is not uncommon for a case to be continued when long distance communication fails in the middle of a Hearing. However, it is also likely that if a Service Member does not request the Servicemember’s Civil Relief Act be applied to their case, decisions will be made and Orders will be issued even if the Service Member is absent.
Federal regulations and state laws must always be considered. Federal regulations (through DFAS) mandate the method of calculating the other Parties’ marital share of military retirement and these specific mandates must be followed. A common misunderstanding among military members is that they must be married 10 years for the former spouse to receive any portion of their retirement. This is not true. A marriage of any length allows a “marital share” of military retirement to be calculated—albeit the shorter the marriage, the smaller the percentage.
If the Parties were married for at least 10 years overlapping military service, DFAS will pay the former spouse directly rather than the Service Member having to pay them each month. This is where the “10 years” misunderstanding comes in. It is not 10 years for eligibility to receive a portion of military retirement—it is 10 years for DFAS to pay it directly to the former spouse. That requires a specific form to be filed. Whether Survivor benefit Plan (“SBP”) is chosen or waived must also be included. Generally, if a former spouse requests SBP in the event of the Service Member’s death, it will be ordered. SBP is expensive and sometimes Parties agree upon alternatives—like a life insurance policy securing the same amount as SBP would pay. Even if the Service Member has only a short time in the military, any agreements, settlements or Court Orders must include what will happen to military retirement—if one is awarded. A reservation of rights (for when the Service Member actually retires) or waivers of the former spouse’s right to receive any portion of the retirement must be entered in the divorce record.
So, while the process for a civilian and a military divorce are the same, the special considerations that pertain to military divorces should be explored. Preserving a Service Member’s relationship with their Children is difficult under regular circumstances. With a divorce added into the mix, it becomes even more difficult. Protecting the Service Member’s rights to due process and to financial protection during the division of assets and debts, takes special understanding of how the different systems work. At The Law Office Of Jeanne M. Wilson & Associates, PC, we know it is important to get it right, though, as the sacrifice our Service Members and their families make in the service of our country, deserves our best efforts.
For more information on military divorce in Colorado, call us at (719) 475-1495