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Military Divorce—Some Issues to Consider

Updated: 10/06/2022

Est. Reading: 4 minutes

When a member of the armed services (we’ll call this the “military member”) gets divorced, there are some special considerations for both the military member and their spouse. When children are involved, paying particular attention to how the military lifestyle has affected them and will affect the family relationships is important. Military members can be absent for long periods of time and the demands upon them even when they are home, can be challenging for the family. The emotional and social consequences for the divorcing military member and spouse can complicate recovery from the whole unpleasant process. Knowing what to expect can help both the military member and spouse better manage the process and themselves.

Financial Considerations:

Spousal Maintenance:

If spousal maintenance is to be awarded to one party in a divorce, the military member should expect that their entire income—basic pay, BAH, BAS, special duty pay (flight, jump, hazard, etc.), family separation pay will all be used to calculate income.  The whole amount—before anything is deducted for taxes, will be used. The non-military spouse’s income from employment will also be calculated before any taxes are taken out.  From these total amounts, the “gross monthly income” of both parties and will determined and used for calculating spousal maintenance and child support. Because the military member’s duty assignment can change and add or subtract many of the special/deployment/hazard pays, one might assume that that spousal maintenance changes each time there is a change in pay.  Not true.  Spousal maintenance is almost always a set amount of money for a set amount of time.  Only upon extraordinary factors does it change. Child support can change anytime the calculation would vary by 10% or more—but not spousal maintenance.

Military Retirement:

Military retirement earned after 20 years of creditable service, whether currently being paid or still being accrued during active duty, reserve or a combination of services, is often an emotional hot button issue. The military member who has sacrificed so much and put them self in harm’s way under difficult circumstances does not want a divorcing spouse to share in what the military member has earned.  The law, however, does not agree. Federal and state law provide for the division of military retirement (not for division of medical or disability or VA disability pay) at divorce.  The law recognizes the sacrifice of the spouse as well as that of the military member.

It is a myth that one needs to be married for 10 years before the divorcing spouse can get a portion of the military member’s retirement.  Practicing law near Fort Carson (“The Mountain Post”) in Colorado, I hear from many military members who are under the assumption that a marriage less than 10 years saves them from sharing their retirement. The truth? A marriage of any duration is eligible upon divorce for an award of a marital share of military retirement to the spouse. The percentage of the spouse’s share may be miniscule in a short term marriage, but it can still be awarded. The longer the period of time of overlap between the marriage and the military member’s creditable service, the greater the percentage. However, the percentage can never be more than 50%. So, what’s the take away from this information for a military member undergoing a divorce? Fight the battles that can be won and strategically approach the battles that cannot be “won”.  Find a way to decrease the impact of sharing military retirement with a former spouse. Maybe that means buying out some of the percentage through other asset exchanges.  Maybe taking the approach of each party leaving the other’s retirement alone will work. In the end, if nothing can be done to decrease the amount of military retirement that is to be awarded to the former spouse, then that is the law and must be accepted.

Parenting/Children Considerations:

Parenting Time/Custody: Another myth that military members often hear is that a Court will not grant a military member “primary parent” status or will limit their parenting time to weekends. The courts near Fort Carson, CO, see military members as part of our community and they are often not looked upon any different than a civilian “Mom” or ‘Dad”. It is the schedule of the Mom or Dad that really determines parenting time.  What are the work hours? What is the window for deployment? Is a PCS coming soon? What will happen with the children during TDY or NTC?  A military member with a regular weekly schedule is really no different than a civilian with a regular weekly schedule.  Such a schedule, though, is not as common as one involving all the contingencies stated above. If a military member’s schedule does not allow for 50/50 parenting with overnights during the week, the court must take that into consideration.  It is not the fact that someone is in the military; the problem is that the military member is not available to be home with the child overnight. Therefore, the other parent who is available, would be named the primary parent and would be awarded the majority of parenting time.

Military members need parenting plans that work with their careers, not against them. Flexibility with child care, pick-up and drop-off times for the children are necessary when the parents live close. Holiday and leave visits, scheduled Facetime/Skype or phone calls during deployments and TDY can help. A long distance parenting plan providing for holidays, school breaks, 4 day weekends and most of the summer to be spent with the military member at their home, keep the parent and child connected after a PCS. Opportunities for the military member to visit in the child’s town and school so they can be part of their child’s daily life should be built into any parenting plan.  

If your family is looking to separate and you are categorized as a military family, let the top Colorado Springs military divorce attorney, Jeanne M. Wilson, help you out. She understand what you are going through and would love to extend her legal aid in your time of need. Call her today!

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