While going through a divorce is always difficult, military members and their spouses face unique challenges relating to jurisdiction, child custody, and the division of military retired pay.
Jurisdiction refers to where the divorce can be filed and is usually determined by where the parties are domiciled (i.e. where they intend to make their permanent home). However, jurisdiction can be challenging to determine when one spouse is in the military and overseas or stationed in a different state than where their spouse resides. To exercise jurisdiction over a military divorce action, the spouses may file in a state that (1) they both identify as their domiciled state, (2) where the military member currently resides for reasons unrelated to the military, or (3) to which they both consent. It is important to remember the state in which the divorce action is filed has control and authority over it.
Child custody can also have unique challenges in a military divorce when the military member is on active duty. The Servicemembers Civil Relief Act (SCRA) allows military members on active duty to stay (i.e. postpone) the court from making child custody decisions for at least 90 days. The military member is required to apply for this protection and provide a letter to the court indicating their current duty requirements and when they can appear in court next.
Another unique challenge in a military divorce is the division of their military retired pay, which is usually the most significant asset in the marriage. The Uniformed Services Former Spouses’ Protection Act (USFSPA) grants the court to consider this pay as marital property, allowing them to divide it like any other pension.
The primary challenge regarding military retired pay is how to divide it and how it can be done. This pay can be divided for child support, alimony, and settlement. It is important to note, however, that not all non-military spouses are entitled to it. If the non-military spouse is entitled to it, the payment method varies based on the length of the marriage and how long the marriage overlapped with the military member’s active service.
Going through a divorce as a military member or with a military spouse poses several unique challenges, so it is vital to seek legal counsel to assist with this process. Our attorney team at The Harris Law Firm can help you navigate a military divorce with confidence. We will work to ensure your best interests are prioritized.
Contact a Colorado attorney online or call us at (303) 622-5502 for a case review.