Colorado Springs Military Divorce Lawyer

How Is Military Divorce Different?

There is a lot about being in the military that is unique. In fact, there is a whole different language and set of laws that apply to members of the military. The realities of military life can also impact a divorce case. While these cases are handled pursuant to Colorado law, there are other factors that can make them more complex than your typical civilian divorce.

Many of the complexities surrounding military divorce have to do with practicalities. Members of the military tend to move around more than civilians do. One spouse may even be in a different location from the rest of the family. In some cases, a military member or spouse may maintain legal residency in another state while living in Colorado.

Additionally, there are some differences in how military divorces are handled when it comes to the division of property, particularly the division of military retirement benefits and access to certain military benefits. Below, we discuss the issues that affect military divorces so that you can better understand what to expect if you are contemplating divorce as a member of the military or a military spouse. 

Jurisdiction

In order for any court to handle a case, it must have two types of jurisdiction: subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction means that the court has the authority to hear the case. Personal jurisdiction refers to the court’s power over the parties and their property.

With a military divorce, it isn’t uncommon for one spouse to reside outside of the state of Colorado. This can make both types of jurisdiction a bit more complicated.

As an initial matter, Colorado requires at least one spouse to be a legal resident of the state before filing for divorce. To qualify as a resident, one or both spouses must have been a resident of the state for a minimum of 91 days prior to filing for divorce. If the couple has minor children, then the children typically need to have resided in Colorado for at least 182 days for the court to have jurisdiction over the children.

For civilian couples, establishing residency is usually pretty straightforward. However, members of the military often move around a fair amount, and one spouse may even be deployed. According to the Colorado Supreme Court, a service member who is in the state on military orders, without more, is not a legal resident. If a service member is stationed in Colorado and gets a driver’s license, registers to vote here, or has their taxes withheld for Colorado, then they will likely qualify as a resident. In many cases, it is the non-military spouse who is a resident of Colorado.

In addition to subject matter jurisdiction, courts also need personal jurisdiction over the parties. This can be achieved when the non-filing spouse is served with the divorce paperwork in Colorado or if a party consents to jurisdiction by filing the petition or signing a waiver and acceptance of service. Alternatively, Colorado’s long-arm statute allows the state to exercise jurisdiction in child support and maintenance proceedings over a person who left the state if the filing spouse has maintained jurisdiction in the state.

Again, personal jurisdiction can be more complicated given that service member spouses may not be legal residents of the state or may reside out of state. If a service member is a legal resident of Colorado but stationed elsewhere, Colorado courts would have jurisdiction over them wherever they are served. As discussed below, service of process is also different in military divorces compared to civilian divorces.

Jurisdiction also becomes an issue when it comes to the division of property. Specifically, Colorado courts may not have subject matter jurisdiction to divide certain portions of military benefits. Our Colorado Springs military divorce attorneys can help you understand your rights and options when it comes to seeking divorce in our state as a service member or military spouse.

Service of Process

When you file for divorce – or initiate any other legal proceeding – you are generally required to serve the legal papers on the other party. Issues often arise in military divorces when a military spouse attempts to serve their soon-to-be ex on a base or when they are deployed overseas.

First, when it comes to serving divorce papers in the United States, a service member can be served just as a civilian could be, provided that they are off-base. If they are stationed at a base, then you may need to go through additional steps (such as coordinating with the military) to serve them. The government can even assist with forwarding correspondence to a military member if you do not know exactly where they are currently located.

Second, overseas service of process can be much more difficult, and in some instances impossible. Unless the military member consents, you will likely have to go through a complicated process to serve them, and that presumes that they are located in a region with a functioning government. If they are deployed to a hostile location, then you almost certainly will not be able to serve them.

Even if you can serve a deployed service member, the Servicemembers Civil Relief Act will delay proceedings. Under this law, when military service impacts a person’s ability to participate in a civil proceeding (including a divorce), the matter will be postponed while their military service prevents them from attending. Effectively, this means that if your military spouse is deployed, then you will have to wait for them to return before starting divorce proceedings.

Division of Property

One of the more complicated aspects of military divorce is the division of assets and debts. While property division will occur under the principle of equitable distribution under Colorado law, there are some quirks associated with military divorce given the unique nature of military pay, housing, benefits, and retirement.

Generally, a couple’s assets and debts will be divided equitably, just as they would be for a civilian marriage. For some benefits, the military has special rules regarding the military spouse’s entitlement. For example, a former military spouse may be able to maintain Tricare benefits if they qualify under one of the following scenarios:

20-20-20 rule

• Your former spouse has at least 20 years of creditable service;
• You were married to them for at least 20 years; and
• All 20 years of marriage overlapped with the 20 years of service.

20-20-15 rule

• Your former spouse has at least 20 years of creditable service;
• You were married to them for at least 20 years; and
• 15 of those years overlap with 20 years of service

All children of the marriage will be eligible for TRICARE until they age out under military rules.

One of the biggest points of contention in a military divorce is often the non-military spouse’s entitlement to their ex’s military retirement. The Colorado Supreme Court has ruled that military retirements are property that is subject to division upon divorce. There are complex formulas for dividing military retirement based on whether the military spouse is still in service or has already retired.

Importantly, a former spouse will be entitled to 50% of military retirement unless the service member negotiates a different amount. If the case goes to trial, then the court will split the retirement. This is an important consideration when deciding how to proceed in a military divorce, as it may make more sense to attempt to come to an agreement rather than proceeding with litigation.

Child Custody

In Colorado, the allocation of parental responsibility (APR) is divided into two parts: parenting time (physical custody) and decision-making (legal custody). Both determinations are made on a variety of factors, with the overarching goal being the best interests of the child(ren).

Of course, with a military divorce, the custody considerations are a bit different. Anyone who has been in the military knows that a permanent change of station (PCS) is always a possibility. A military spouse could also be deployed. Both of these factors may impact child custody.

Generally, a parent cannot relocate a child to a different state without the consent of the other parent or permission from the court. If you are in the military and are relocated outside of Colorado, you will not be able to move your children with you unless your ex agrees or you petition the court for a modification of parenting time. If your children stay in Colorado with your ex, then there may be other considerations, like figuring out a parenting plan when you’re a long-distance parent and deciding who will pay for getting the kids to you for visitation.

When it comes to deployment, Colorado has adopted the Uniform Deployed Parents Custody and Visitation Act. Under this law, any custodial changes that occur while a parent is deployed are only temporary. This law also allows for the kids to have contact with other family members while the service member parent is deployed.

If you are getting divorced as a military couple, you might be concerned about how the divorce will affect your time with your kids. Our Colorado Springs military divorce lawyers can explain your rights and options and help to protect your interests.

Maintenance and Child Support

If you have minor children with your spouse, then child support will likely be a factor in your divorce. You may also be entitled to maintenance (also known as alimony) based on the unique factors in your case. Both alimony and child support calculations will be calculated in part based on your income.

When calculating child support and maintenance, Colorado courts consider each spouse’s gross income. This includes all compensation that a person receives, including non-taxable allowances that are common in the military [such as a basic allowance for housing (BAH) and/or a basic allowance for subsistence (BAS)]. Colorado courts will also impute income to service members who receive lodging or food allowances in lieu of BAH and BAS. Gross income may then include basic pay, tax-free allowances, and lodging and food provided instead of BAH or BAS.

Because of these considerations, military divorces are often more complex when it comes to determining spousal maintenance and child support. In addition, the military generally requires service members to provide support to family members during periods of separation (temporary spousal support). Military pay, military retirement, and Veterans’ Administration (VA) disability can also potentially be garnished to pay for spousal support and/or child support.