There are various aspects of military divorces, such as specialized benefits and overseas deployments, that can make them more complicated than many civilian divorces. Oftentimes, it’s most beneficial to veterans and their spouses to seek legal advice from divorce attorneys who are knowledgable and skilled in the area of military divorce.
If you are a veteran, active duty military or a military spouse considering divorce, here are 10 things you should know about the divorce process.
- Military members have access to a legal assistance office that can provide free legal support.
You have access to free legal assistance through your installation legal assistance office whether you live in Colorado or overseas. They provide legal assistance attorneys. They can give advice on divorce, custody and the Servicemembers Civil Relief Act. The attorneys cannot go to court for you, but they can help get you in the right direction. And it’s free. If you need a private attorney for court or additional advice, call Andersen Law PC at 720-922-3880 for a free consult.
- The Servicemembers Civil Relief Act(SCRA) protects your rights in divorce while you are on active duty.
If your active duty prevents you from going to court, the SCRA gives you more time to attend. The SCRA can protect you from a default judgment being entered against you. The Colorado court forms for divorce require a party filing for divorce to disclose whether the other party is protected by the SCRA.
- Military spouses also have access to military assistance and rights.
If you are a military spouse, you too have access to military legal assistance at no cost unless they are representing your spouse. To avoid conflicts of interest, they cannot represent both parties. Under the Uniformed Services Former Spouses’ Protection Act, you have a right to certain military benefits. If you meet the 20/20/20 rule, you have additional rights to benefits under the Morale, Welfare and Recreation program. The criteria are 20 years of marriage before divorce, 20 years of military service by the spouse; both must overlap at least 20 years. 20/20/15 spouses (where the overlap is only 15 years) can also qualify for benefits, albeit for a shorter duration.
- Military members abroad sometimes can file abroad but may prefer to file in the U.S.
If you file abroad, it is possible U.S. courts will not recognize the foreign divorce. On the other hand, you are allowed to file in the state where you are stationed, the state where you claim legal residency or the state where the non-military spouse resides (provided you meet the jurisdictional requirements of those states).
- The Defense Finance and Accounting Service (DFAS) will make payments for any child support order that meets DFAS requirements.
This usually happens in the form of an income assignment or wage garnishment (i.e. direct payments to the family). Check into your military pay center for this garnishment. For most branches of the military, this is the DFAS.
- The non-military may be eligible for health insurance after divorce.
A 20/20/20 spouse who does not remarry may be eligible for post-divorce health insurance under TRICARE. If not TRICARE-eligible, they may qualify to buy conversion health coverage: Continued Health Care Benefit Program (CHCBP).
- Military retirement benefits can be divided or otherwise apportioned along with other marital property as part of the divorce.
Military contribute to the Thrift Savings Plan (TSP) much like a civilian 401(k) retirement account. A formula will determine the marital portion to be split between the parties, bought out or traded out for another asset. So too, military may appoint their former spouse as beneficiary of a purchased Survivor Benefit Plan (SBP) so they continue to get benefits after the military person’s death. Military pensions are also divided if criteria are met. If the 10/10 rule (10 years of military service plus at least 10 years of marriage) is met, this pension can be paid monthly to the former spouse through the military retired pay center. If the rule is not met, the pension can be paid by the retired military spouse. The law only allows division of “disposable retired pay.” These issues are very complicated and often require a skilled lawyer’s advice. Call Andersen Law PC at 720-922-3880 for a free consult on military retirement.
- Veterans Administration (VA) disability payments are NOT divisible after divorce.
Congress has ensured that these benefits are for the use of the disabled veteran and NOT the divorced spouse.
- Courts support the parenting rights of veterans including those who have survived active duty, have a physical or mental illness, or have suffered PTSD.
Despite the unfortunate and unfair stereotype of a disabled veteran who has PTSD or is dangerous or violent, the law is clear that parenting time CANNOT be denied simply because a veteran is disabled. Colorado courts will look at the best interests of the child and will not restrict a parent merely because they have depression or PTSD unless there is evidence that parent endangers the child’s physical safety or significantly impairs the child’s mental health. An attorney can help gather and present evidence that a military veteran is safe and healthy, even if they have struggled with mental health ramifications of service.
- Veterans Administration medical personnel may not be able to testify in court regarding treatment.
Do not assume your military medical provider is going to appear in court to testify about your mental health and treatment. These medical staff are very busy and their time is precious, meant to be spent providing treatment. Perhaps for this reason, it is difficult to arrange for their appearance and testimony in court, even with a subpoena. Call Andersen Law PC at 720-922-3880 for a free consult on how strategies such as retaining a child family investigator (CFI) can help you present evidence of your parenting fitness even if your mental health providers are not available.
For a free consult on your specific issues in your military divorce, contact Andersen Law PC at 720-922-3880. We are proud to have recent Temple Law School law graduate Philadelphia George focusing on military divorces in addition to the rest of our experienced team ready to help you with your case.