Military divorces can be complicated, whether you and/or your spouse are active members or past members. Below, you’ll find information to help you through the specifics of your process.
Filing, Serving and Answering the Petition for Divorce
To file for divorce in Colorado,
- you or your spouse must either reside in or be stationed in the state for at least 91 days,
- you must file a petition for divorce in the county you live in,
- and in order for the court to have jurisdiction over a serving member, the active duty spouse has to be personally served with a summons and a copy of the divorce Petition. If you file for divorce in the state of Colorado, Colorado retains jurisdiction over your divorce even if you plan to move back to your hometown.
In the case of an uncontested divorce, it might be easiest if the active-duty spouse signs a Waiver and Acceptance of Service, avoiding the need for the spouse to be formally served. Alternatively, both spouses can sign a Co-Petition to waive the service requirement.
Service Members’ Civil Relief Act
The Service Members’ Civil Relief Act (SCRA) is a federal law that governs and protects military personnel in terms of civil law procedures, such as divorce. These include laws that protect against being held in default upon failure to respond in time to a divorce application filed by their spouse and ensure they would be aware if a Petition for Divorce was filed against them even if they were on duty at the time. Colorado courts have the discretion to postpone the divorce proceeding for the entire time the active duty spouse is on duty, including up to 60 days after their duty ends. This is typically done in cases where the active duty member is away at war, but in general, allows them to have time and a meaningful opportunity to go over their options. However, the right to have the proceedings delayed can be waived by the active-duty spouse in cases of uncontested divorces.
In cases where children are involved, there are two things to consider: child custody and child support. It is important to note that courts tend to be more flexible when it comes to custody and visitation plans when one (or both) of the parties are active service members.
With respect to child custody, under Colorado law, when a custodial parent is deployed, arrangements can be made to transfer full-time care of the children to the non-custodial parent in the custodial parent’s absence. When a non-custodial parent is deployed, their parental rights including visitation can be transferred to a close family member.
Child support is still determined by the Colorado guidelines. However, language can be added to the final documents to account for the variance in pay received when a service member is deployed.
Military retirement benefits are calculated and divided upon divorce as per the governing federal statute, the Uniformed Services Former Spouses’ Protection Act (USFSPA). For marriages 10 years or longer, the Defense Finance and Accounting Service (DFAS) will make payments directly to the ex-spouse from the military pension.
Under these rules, after 10 years of marriage, a non-service spouse might be entitled to 50% of the military pension package, but in some instances, it can be even higher than that. For marriages less than 10 years in length, the ex-spouse can still be entitled to a portion of the retirement pension, but the payment must come directly from the service member spouse rather than directly from DFAS.
There are special military privileges that certain non-service ex-spouses can remain entitled to following their divorce and with certain rules being met. Some privileges include access to base commissary facilities, base exchanges, military discounts, and continued use of TRICARE. These privileges are largely dependent on whether the serving spouse has been a member of the military for at least 20 years, and if the marriage overlaps with the service period for either 15 or 20 years.
The first rule for determining eligibility is the 20/20/20, which states that if the couple was married for 20 years or more, and the military service of the serving spouse was also 20 years or more, with there being a 20-year overlap between marriage and military service, the ex-spouse is entitled to full access to the perks. The ex-spouse can enjoy these benefits until they remarry. As well, the children of that marriage retain these privileges until they turn 23 years old or get married, whichever comes first. It is important to note that under the 20/20/20 rule, TRICARE requires the non-service ex-spouse to register under their own name and Social Security Number and that the benefit will cease once they remarry.
For those who don’t meet the full 20/20/20 requirements, there’s the 20/20/15 rule. The only difference is that the “15” signifies the overlap between the length of the marriage and the military service, meaning a 15-year overlap instead of a 20-year overlap. The main difference is that TRICARE coverage for the non-service spouse in these cases will be for one year only unless they remarry sooner than that.
These rules have nothing to do with what happens in divorce with respect to assets, pensions, child support, etc. These rules speak to eligibility for particular military privileges only.
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