What Texas military members should know when divorcing

If you or your spouse are active or past members of the military, getting a divorce can be more complicated. Below, you’ll find information to help you through the specifics of your process. 

How do you file for divorce if you or your spouse are actively serving in the military?
If you or your spouse are serving in the military, you may file for divorce in Texas if:

  • You or your spouse either resided in or were stationed in the state for at least 6 months, and
  • You or your spouse was a resident in the county where you’re filing for at least 90 days. 

What about residency if we have kids?

If you and your spouse have minor children, and your children have lived in a state other than Texas or another country for the past 6 months, a Texas court may not have jurisdiction over child custody and child support and you should seek legal advice from an attorney.

How do I serve if my spouse is on active duty?
The active duty spouse has to be personally served with a summons and a copy of the divorce action. In the case of an uncontested divorce, the active duty spouse has the option of signing a Specific Waiver of Service form, which would mean the active duty spouse doesn’t need to be formally served.

What’s the Servicemembers Civil Relief Act?
The Servicemembers 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 makes sure they would know if a Petition for Divorce was filed against them – even if they were on duty at the time. 

How does the SCRA affect my divorce?
The SCRA allows active duty members to postpone their divorce proceedings for 90 days in order to allow them sufficient time to respond. Texas courts also 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 or agreed divorces.

How do military divorces work when we have children?
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.

Child custody and active duty
Under Texas law, when a custodial parent is deployed, the court may order a temporary change in custody. Although the court’s general preference is to transfer full-time care of the children to the non-custodial parent in the custodial parent’s absence, the court may allow for another person selected by the custodial parent to have temporary custody, if the court determines it is not in the best interest of the child to be with the non-custodial parent. When a non-custodial parent is deployed, their visitation rights can be transferred to another person via a temporary visitation order, but again, this must be in the best interest of the child. The non-custodial parent can also ask the court to award them makeup visitation time upon their return from deployment.

What about child support?
Child support is still determined by the Texas guidelines, except that the child support obligation cannot exceed 60% of the military spouse’s pay. Child support obligations are based on a percentage of the average monthly net resources amount of the non-custodial parent, and depends on the number of children requiring support as follows:

  • 1 child = 20% of the non-custodial parent’s average monthly net resources
  • 2 children = 25% of the non-custodial parent’s average monthly net resources
  • 3 children = 30% of the non-custodial parent’s average monthly net resources
  • 4 children = 35% of the non-custodial parent’s average monthly net resources
  • 5 children = 40% of the non-custodial parent’s average monthly net resources
  • 6 or more children = not less than 40% of the noncustodial parent’s average monthly net resources

When the Court is deciding on how much child support the non-custodial parent needs to pay, they also take into consideration how many children are being supported by them otherwise, so amounts can vary.

What happens to military pensions during divorce?
Military retirement benefits are calculated and divided upon divorce by the Uniformed Services Former Spouses’ Protection Act (USFSPA), which is the governing federal statute. 

How much pension spouses get depends on how long they were married. For marriages 10 years or longer, 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. In these cases, the Defense Finance and Accounting Service (DFAS) will make payments directly to the ex-spouse from the military pension. 

For marriages of less than 10 years, 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.

Do I keep military privileges if I am a non-service spouse?
There are special military privileges that certain non-service ex-spouses can remain entitled to following their divorce if certain rules are 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 20/20/20 rule: The first rule for determining eligibility is the 20/20/20 rule, 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, and there was 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. Children of that marriage also 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 ends once they remarry.

The 20/20/15 rule: 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.

Heads up: 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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