Military Divorce: How is it Different From a Civilian Divorce?

PART 1

A military divorce is essentially the same legal entity as a civilian divorce. The same Court, same general laws and same processes apply to both. However, for a military member there are special considerations—and even some special laws—that apply.

Parenting Time

Considerations regarding custody, parenting time, relocations and long absences from Children’s lives with deployments can enter into a military divorce. Service Members often fear they will be relegated to second class status as a parent because of their work obligations. Without addressing the matter directly, that can, indeed, occur. The Court must be taught and understand the Service Member’s availability—and when they are not available–to parent their Child in order to make a fair custody decision. Knowing the difference between a PCS (permanent change of station), a TDY (temporary duty), a mandatory training, for example NTC (National Training Center) for 30 days each year and a deployment and how long the deployment will be and whether mid-tour leave is allowed during the deployment is essential for the Court. The Service Member, or their attorney, must educate the Court on the facts of what the Service Member is facing and the likelihood of certain events occurring. Don’t assume a judge knows what a TDY is like or what it means. Even judges who have served in the military can misunderstand modern day schedules and obligations. You want to prevent a Court from assuming a Service Member is unavailable to act as a parent and permanently award the majority of custody and parenting time to the non-Service Member.

In Colorado, a statute prohibits a Court from assuming someone in the military cannot be awarded as much custody and parenting time as a civilian parent. However, unless the Court is educated on the specifics regarding the Service Members’ availability and schedule, the Court will likely make a determination that penalizes the Service Member—because the Service Member is not present to parent their Child. Instead, the Court must be shown that parenting plans can have built-in mechanisms that allow for the Service Member’s work schedule—while preserving their rights and allowing them to parent their Child.

For example, if there is a very young Child or Baby and a Service Member will be deployed for a year, a period of reintroduction once the Service Member returns will be helpful to allow resumption of any prior parenting plan that was in place. A graduated parenting schedule, maybe starting with a two hour visit with both parents present, increasing to four hours with just the Service Member present, then to overnights until working up to the prior parenting time plan can help a Baby or young Child accept the other Parent without so much separation anxiety. The Court needs to understand that summer parenting time which often extends for 2 months or more in long distance parenting plans, needs to be forfeited when a Service Member is deployed. However, the Service Member will return from deployment and their temporary absence one year need not prevent summer vacation between the Service Member and their Child other years.

Family Care Plan:

Determining whether a new Family Care Plan is needed for the Service Member when they deploy may also be part of any parenting plan. Many Service Members already have a Family Care Plan, but it may be inadequate depending upon the parenting time schedule. If the Service Member is the primary parent for the Child, when the Service Member deploys, the Child will likely go to the other Parent–but, not always. The Service Members own parents or extended family may be a better choice than the other Parent. Depending upon the circumstances of the Parents and whether they are both fit to care for their Child, the specifics of the Family Care Plan can vary with the options presented.

Phone and Electronic Contact

Facetime, email, texting, etc. between a Service Member and their Child, especially when deployed or on an uncertain schedule overseas, must be realistically addressed. A plan that incorporates enough flexibility to allow a call or contact when the Service Member is available—but doesn’t penalize the Service Member for missing a call must be created. Sometimes this includes setting a schedule of set times for calls and the Service Member  either makes it or doesn’t-but is not penalized. Sometimes it includes the Service Member contacting the other Parent whenever they are available and requesting phone/electronic contact with their Child. If the Children are older, unlimited contact directly between the Child and the Service member during the Child’s normal waking hours to not interfere with school can work well. Describing for the Court the circumstances in which the Service member will be placed, such as limits upon available phones, black-out times, variable infrastructures to support a consistent call schedule, can help the Court accept a flexible plan that promotes contact when possible but does not penalize when contact is not possible.

For more information regarding military divorce in Colorado, call us at (719) 475-1495