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Divorce is hard no matter who is going through it. Ending a marriage and going your separate ways is not something anyone set out to do when they wed. When it becomes apparent that the marriage is no longer sustainable, emotions can run high and the future can seem uncertain.
Military members are no exception to this situation. Unfortunately, getting divorced while in the military can also present unique challenges that civilian couples don’t have to deal with. Fortunately, an experienced Denver military divorce attorney could help you prepare for and deal with these matters before they become problematic.
Call the Denver Halligan LLC military divorce attorneys at (720) 608-2361 or contact us online if you are in the military or are a military spouse going through a divorce.
How are Military Divorces Different Than Regular Divorces?
All divorces must be legally finalized before they become official. The process of divorce can vary from state to state because each state has different laws. With military divorces, state and federal laws may dictate how divorce is initiated and settled.
One major complicating factor unique to military divorces is the residence statuses of both the service member and spouse. Spouses must meet residency requirements in order to file for divorce in Colorado. Either spouse must be a resident of Colorado for 91 or more days before filing a divorce petition (with limited exceptions).
Service members and their families can move both nationally and abroad with military stationing. Service members typically establish their legal residence in the state in which they joined the military or the state in which they already had legal residence. It’s difficult for service members and military spouses to establish residency in any one state. There are exceptions to this residency requirement for qualifying for a divorce.
In order for a military couple to file for a divorce in Colorado, one or both of the spouses must have been a legal resident of the state for at least 90 days. The courts may consider several different pieces of evidence in order to determine whether a spouse meets that condition. A service member’s Leave & Earnings Statement (LES) typically establishes their state of residence, although the court may also consider voting registration, property deeds, and a stated intention to permanently reside in the state. A spouse’s proof of residence can be established by a driver’s license, utility bills, a lease agreement, a mortgage bill, or voting records.
Another complicated difference between military and regular divorces is the division of assets, specifically military pensions and benefits. Colorado state law stipulates how marital property is divided in a divorce. However, in the case of military divorces, federal law governs how certain marital property can be divided, such as military retirement/pension benefits. Federal law also governs a military spouse’s access to medical and other military benefits attached to the service member.
Federal law and military rules also may govern certain aspects of child custody, child support, and spousal maintenance issues. Service members may be ordered to pay temporary support to military spouses soon after a divorce is filed and before the finalization of the divorce.
A significant hurdle unique to military divorces is initiating and proceeding with divorce when the service member is deployed or on temporary duty travel. In both cases, the service member is generally not in the state where they are stationed, let alone in the state where their spouse is residing. This can present an issue when one spouse needs to serve another spouse with their divorce notice, when documents need to be provided when negotiations are ongoing, or when hearings are required.
Furthermore, federal law allows service members to suspend divorce proceedings while on active duty and for up to 90 days after they are no longer active duty .
There are two essential requirements for a military service member or a military spouse to file for divorce in the state of Colorado. These requirements relate to the state’s jurisdiction. To enter a Divorce Decree, Colorado must have both personal jurisdiction and subject matter jurisdiction over your divorce.
Subject matter jurisdiction means that the court in which your divorce petition was filed is the court that can dissolve your marriage and/or enter orders concerning property allocation, support, etc. In Colorado, the district courts determine divorce cases and related matters. You or your spouse can file a petition for divorce in the state if Colorado has both subject matter and personal jurisdiction.
DFAS and Military Pensions
Colorado is an equitable distribution state. This means that property acquired during a marriage will be divided fairly between spouses when they divorce.
Military pensions are a substantial benefit, and, in Colorado, are considered marital property and therefore subject to division in the event of divorce. The state’s Supreme Court has held that, for the purposes of asset division, a military pension should be valued at the amount available at retirement, not the amount accrued at the time of divorce.
A divorcing military couple has a few options for valuating a pension. One is to have the pension appraised to determine its present marital value. Another is to employ the Hunt/Gallo formula, a time-based formula for valuing a military pension for divorce purposes which was established in a 1995 Colorado Supreme Court case. Other assets may then be allocated to offset the established value of the pension.
Military pay and military pensions are managed by the Defense Finance and Accounting Service, known as DFAS. A court order must be provided to DFAS stipulating that the service member has obtained a divorce and detailing the exact division of the pension for DFAS to pay the military spouse their portion of the pension.
How a Colorado Divorce Lawyer Could Help
The Denver attorneys at Halligan LLC have extensive experience representing both service members and military spouses in divorce. We’ve helped our clients navigate the complex practical and legal issues common when divorcing in the military, and we can help you too. Call us today at (720) 608-2361 or contact us online for a consultation.