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Military Divorce Vs. a Civilian Divorce

Updated: 09/23/2022

Est. Reading: 6 minutes

A military divorce is essentially the same legal entity as a civilian divorce. The same Court, same general laws, and same processes apply to both. However, for a military member there is special consideration —and even some special laws—that apply.

Parenting Time

Considerations regarding custody, parenting time, relocations, and long absences from Children’s lives with deployments can enter into a military divorce. Service Members often fear they will be relegated to second-class status as a parent because of their work obligations. Without addressing the matter directly, that can, indeed, occur.

The Court must be taught and understand the Service Member’s availability—and when they are not available--to parent their Child in order to make a fair custody decision. Knowing the difference between a PCS (permanent change of station), a TDY (temporary duty), a mandatory training, for example, NTC (National Training Center) for 30 days each year and deployment and how long the deployment will be and whether mid-tour leave is allowed during the deployment is essential for the Court. The Service Member, or their attorney, must educate the Court on the facts of what the Service Member is facing and the likelihood of certain events occurring.

Don’t assume a judge knows what a TDY is like or what it means. Even judges who have served in the military can misunderstand modern-day schedules and obligations. You want to prevent a Court from assuming a Service Member is unavailable to act as a parent and permanently award the majority of custody and parenting time to the non-Service Member.

In Colorado, a statute prohibits a Court from assuming someone in the military cannot be awarded as much custody and parenting time as a civilian parent. However, unless the Court is educated on the specifics regarding the Service Members’ availability and schedule, the Court will likely make a determination that penalizes the Service Member—because the Service Member is not present to parent their Child.

military dad with his family, Military Divorce Vs. a Civilian Divorce

Instead, the Court must be shown that parenting plans can have built-in mechanisms that allow for the Service Member’s work schedule—while preserving their rights and allowing them to parent their Child.

For example, if there is a very young Child or Baby and a Service Member will be deployed for a year, a period of reintroduction, once the Service Member returns, will be helpful to allow the resumption of any prior parenting plan that was in place. A graduated parenting schedule, maybe starting with a two-hour visit with both parents present, increasing to four hours with just the Service Member present, then to overnights until working up to the prior parenting time plan can help a Baby or young Child accept the other Parent without so much separation anxiety.

The Court needs to understand that summer parenting time which often extends for 2 months or more in long-distance parenting plans, needs to be forfeited when a Service Member is deployed. However, the Service Member will return from deployment and their temporary absence of one year need not prevent summer vacation between the Service Member and their Child other years.

Family Care Plan:

Determining whether a new Family Care Plan is needed for the Service Member when they deploy may also be part of any parenting plan. Many Service Members already have a Family Care Plan, but it may be inadequate depending upon the parenting time schedule. If the Service Member is the primary parent for the Child, when the Service Member deploys, the Child will likely go to the other Parent--but, not always.

The Service Members' own parents or extended family may be a better choice than the other Parent. Depending upon the circumstances of the Parents and whether they are both fit to care for their Child, the specifics of the Family Care Plan can vary with the options presented.

Phone and Electronic Contact

Facetime, email, texting, etc. between a Service Member and their Child, especially when deployed or on an uncertain schedule overseas, must be realistically addressed. A plan that incorporates enough flexibility to allow a call or contact when the Service Member is available—but doesn’t penalize the Service Member for missing a call must be created.

Sometimes this includes setting a schedule of set times for calls and the Service Member either makes it or doesn’t-but is not penalized. Sometimes it includes the Service Member contacting the other Parent whenever they are available and requesting phone/electronic contact with their Child. If the Children are older, unlimited contact directly between the Child and the Service member during the Child’s normal waking hours to not interfere with school can work well.

Describing for the Court the circumstances in which the Service member will be placed, such as limits upon available phones, black-out times, and variable infrastructures to support a consistent call schedule, can help the Court accept a flexible plan that promotes contact when possible but does not penalize when contact is not possible.

A military divorce is essentially the same legal entity as a civilian divorce. With military divorces, the same general laws, the same Court, and the same processes apply to both. However, for a military member, there are special considerations and some special laws that apply.

The Child’s Contact with the Service Member’s Family

This can be included in any parenting plan created during the divorce. Birthday and holiday celebrations or summer vacations for the Children that include the Service Member’s family in attendance may be important to keep a Child current and involved with their military Parent. Some military parenting plans even specify a time for extended family visits.

The Service Member's Civil Relief Act

Whether the Service Member is available when deployed or TDY or training to attend to the Court case is always a concern. If the Service Member is not available,  the Servicemember’s Civil Relief Act (often called the “Soldiers and Sailor’s Act”) will allow the case to be stayed (postponed) for most further proceedings pending their return. Temporary Orders Hearings for financial support of a civilian Parent and Child or emergency hearings for the safety of a Child, will likely not be stayed.

However, all other proceedings, including any final hearings for divorce or custody cases are delayed until the return of the Service Member. Some Service Members choose to keep the proceedings going and try to attend by video or phone. This can work at times, but often causes technical problems of garbled communication or dropped reception that one would expect in the field or a conflict zone.  It is not uncommon for a case to be continued when long-distance communication fails in the middle of a Hearing.

However, it is also likely that if a Service Member does not request the Servicemember’s Civil Relief Act be applied to their case, decisions will be made and Orders will be issued even if the Service Member is absent.

person taking off wedding ring, Military Divorce Vs. a Civilian Divorce

Military Retirement

Federal regulations and state laws must always be considered. Federal regulations (through DFAS) mandate the method of calculating the other Parties’ marital share of military retirement and these specific mandates must be followed. A common misunderstanding among military members is that they must be married for 10 years for the former spouse to receive any portion of their retirement. This is not true. A marriage of any length allows a “marital share” of military retirement to be calculated—albeit the shorter the marriage, the smaller the percentage.

If the Parties were married for at least 10 years overlapping military service, DFAS will pay the former spouse directly rather than the Service Member having to pay them each month. This is where the “10 years” misunderstanding comes in. It is not 10 years for eligibility to receive a portion of military retirement—it is 10 years for DFAS to pay it directly to the former spouse.  That requires a specific form to be filed. Whether the Survivor Benefit Plan (“SBP”) is chosen or waived must also be included. Generally, if a former spouse requests SBP in the event of the Service Member’s death, it will be ordered.

SBP is expensive and sometimes Parties agree upon alternatives—like a life insurance policy securing the same amount as SBP would pay. Even if the Service Member has only a short time in the military, any agreements, settlements, or Court Orders must include what will happen to military retirement—if one is awarded. A reservation of rights (for when the Service Member actually retires) or waivers of the former spouse’s right to receive any portion of the retirement must be entered in the divorce record.

So, while the process for a civilian and a military divorce is the same, the special considerations that pertain to military divorces should be explored. Preserving a Service Member’s relationship with their Children is difficult under regular circumstances. With a divorce added into the mix, it becomes even more difficult. Protecting the Service Member’s rights to due process and to financial protection during the division of assets and debts takes a special understanding of how the different systems work. At The Law Office Of Jeanne M. Wilson & Associates, PC, we know it is important to get it right, though, as the sacrifice our Service Members and their families make in the service of our country, deserves our best efforts.

For more information on military divorce in Colorado, call us at (719) 475-1495

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