Even when both parties agree a divorce is their best interests, it can still be a challenging time. For couples in which one or both spouses are active duty military, divorce can be even more complicated. The way each state handles military divorce is different, and federal laws are also a consideration when a military marriage dissolves. The military lifestyle influences nearly every aspect of a divorce, from spousal support to custody.
In Colorado alone, over 47,000 men and women are active duty military. The rate of divorce among military personnel is about the same as the national average, though if the spouse in the military is female, rates are usually higher. Unfortunately, the stress of military life can put a strain on marriage. Long deployments, the emotional strain of solo parenting, and the effects of PTSD can all make married life difficult. When divorce is inevitable, military couples should discuss their situation with a firm that is experienced in divorce law for Colorado.
How Does Military Divorce Differ From Civilian Divorce?
Military divorce differs from civilian divorce in a few important ways. While the process for divorcing is essentially the same, military couples must consider a few other factors that civilian couples do not have to consider.
Certain laws dictate the handling of military divorce that include more federal regulations.
Many courts consider military benefits and retirement to be a divisible asset, so judges must take this into consideration.
Military personnel often claim residency in a state other than the one where they reside. A couple may live in Colorado, but residency is in Florida or New York.
Custody arrangements may not be traditional due to deployments.
Pensions and the 10/10 Rule
Couples married for at least 10 years during a period of active service benefit from the 10/10 rule. It is a statute that dictates the automatic payment to military spouses of their share of the military retirement pension. However, couples who are married less than 10 years during a period where one or both of them experienced active duty can also get shares of military retirement benefits; it just does not happen automatically. In that case, it may come from the spouse directly as spousal support.
Hunt/Gallo Formula for Retirement
The Hunt/Gallo formula determines the share of retirement pension the law entitles a former military spouse to have after a divorce. The courts determine this by taking the number of months of military service that occurred during marriage and dividing them by the total months that the military spouse served. The former spouse receives one-half of the marital portion calculated by the formula.
How to Determine Filing State
The first step in military-related divorce court is determining the correct court for hearing the case. Divorcing couples must prove they are residents of the state where they filed divorce. In Colorado, the law dictates that one or both of the spouses are a resident of the state for no less than 90 days. The couple proves residency in a few ways; a driver’s license, LES (Leave and Earnings) statements, a voter registration card, or proof of property all prove residency. It is legal to apply for residency with the sole purpose of filing for divorce, as long as one or both people achieve resident status at least 90 days before officially filing.
Extra allowances make up a large portion of military pay. Base pay is usually adequate for day-to-day expenses, partially because of additional allowances. Basic Allowance for Housing (BAH) covers housing, and Basic Allowance for Subsistence (BAS) covers many daily necessities. All these streams of financial support make up a military person’s true income. For that reason, the entirety of monthly allowances makes up divisible income in a divorce. The laws include VA benefits as income, as well, but do not regard them as marital assets.
Obligations of Military Members to Spousal Maintenance
In Colorado, the court has the authority to order missed spousal support or child support payments out of a service member’s paycheck, sending it directly to the spouse. Additionally, the military branches themselves have regulations in place that require personnel to support their families after a separation. A former spouse may also seek assistance from the commander, the local judge advocate general office, or the inspector general of the service member should they fail to meet their spousal maintenance obligations.
While this seems like enough to ensure he or she makes payments, it is still best practice to have a formal court order that clearly defines spousal and child support.
The Complications of Custody
In traditional divorces, a stereotype still survives that suggests the courts favor mothers – and this stereotype is made worse in military divorces since mothers tend to receive primary custody more often than fathers. Colorado does not favor mothers or fathers more often in custody cases, though military divorces may make it seem like they do. In military divorces, the overwhelming custody tends to fall to mothers; rather than due to gender or parenting bias, this is most likely because they are less likely to be the parent on active duty.
Every child custody case in Colorado is different, but the court statistically awards the stateside or non-military parent more custody, and this parent is usually the mother. The reasoning behind such decisions is that it is in the best interests of children to keep them in the same school with the same social and familial network. However, the court makes exceptions and modifications to custody agreements to allocate times of year where the active duty parent has primary custody. The courts base these agreements on the active duty spouse’s military schedule, as well as the children’s school schedule and location.
The service members’ Civil Relief Act (SCRA) allows service members to postpone or even suspend certain civil obligations while on deployment. This aids service members that are on active deployment or duty to pay full attention to their duties without causing additional problems for their family members at home.
One of the most complex types of martial dissolution is a divorce between two active military members with children. If both parents want primary custody and are having trouble agreeing on how it would work, the law requires a third party to mediate and make a parenting plan. In most cases, the resulting parenting plan allows both parents time to be the primary parent, depending on deployments. In some cases, two military parents can resolve custody disputes and create such a plan without a third party. Dual military divorce often requires more in the way of custody collaboration.
Talk to an Experienced Attorney
Call The Law Office of Stephen Vertucci, LLC at (970) 900-1800 today to schedule a consultation and get the peace of mind that comes with a skilled legal advocate who has your back.