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Are Military Divorces More Complicated?
Posted in Divorce on September 30, 2022
Getting divorced is never easy. In addition to the emotional toll of your relationship ending, the legal process of getting divorced itself can be complicated – especially if you have an unusual circumstance, such as if one or both of you are U.S. military members. Military divorces are more complicated than civilian divorce cases in Colorado for several reasons. Here’s what you need to know about the differences between these two types of divorces.
Military Divorce Involves State and Federal Laws
Unlike a typical divorce case that only involves state laws, a military divorce deals with federal laws in addition to state laws. For example, the benefits that service members and their spouses are entitled to are controlled by federal law. Dividing these benefits in a divorce case, therefore, requires the couple to navigate federal laws in addition to Colorado’s divorce laws. This can make the divorce process more difficult than the average divorce.
Military Benefits May Be Divided
In a typical divorce case, Colorado uses an equitable division law to divide property. This means that if a divorce case goes to court, a judge will divide the couple’s marital or community property in a way that is equitable or fair for both parties. The division of assets in a military divorce, however, is different than in a civilian case. The couple must navigate the complicated system of pay and benefits that comes with being a service member.
According to the Uniformed Services Former Spouse Protection Act, a military pension is viewed as part of a couple’s marital property and is subject to division in a divorce case. In general, an ex-spouse is entitled to part of a service member’s military pension if the couple was married for at least 10 years. If the military member served for at least 20 years, the marriage lasted at least 20 years and there were at least 20 years of overlap between the two, the ex-spouse will receive all military benefits and privileges.
Child Support May Be Partially Funded by the Military
Another complication is the military’s Basic Allowance for Housing benefits, or BAH. This is a payment from the military that covers each service member’s housing and utility costs if they choose not to live on base or in military housing. After a divorce, the spouse who is not a military member generally will not be entitled to any of the serving spouse’s BAH benefits.
However, if the serving spouse is ordered to pay child support, he or she may be able to use part of the BAH benefits to fund his or her financial obligation. Once a military member is divorced and no longer has a spouse or dependents, he or she may move back into military housing and will no longer be eligible for BAH benefits. However, if an active-duty military member receives primary custody of a child, he or she will continue receiving BAH.
The military uses a calculation method known as BAH-DIFF to permit ongoing BAH payments if the service member has to pay more in child support than his or her BAH-DIFF rate. If both spouses are on active duty, however, they cannot both receive BAH for the same dependent.
Custody Arrangements Can Be More Difficult
Child custody is also more complicated in a military divorce. If one or both parents are active-duty service members, the issue of deployment must be taken into account when determining child custody arrangements. If only one parent is on active duty, the non-serving spouse will most likely receive primary custody to reduce the amount of upheaval in the child’s life due to frequent relocations. If both parents are on active duty, they may need to allocate a portion of the year to each parent for custody.
Get legal assistance with your complicated military divorce case in Fort Collins by contacting a divorce lawyer near you at The Law Office of Stephen Vertucci, LLC.