Experienced Colorado Springs Divorce Lawyer Working with Military Families
While no divorce is easy, family law and divorce matters involving members of the military and their dependents become more challenging. Some of the complications are created by the fact that military family law issues involve a combination of state (Colorado law) as well as federal benefits. To obtain the best results in such challenging circumstances, it can be helpful to obtain the assistance of counsel familiar with issues facing the military to successfully deal with special issues involving relocation, division of military retirement benefits and the survivor benefit plan (SBP), as well as the complexities of child custody disputes. See our collection of helpful online parenting tools that divorced and separated parents in the military may find especially useful.
Jurisdiction and Military Service
Since Colorado-based military personnel are frequently relocated, they can move and reside temporarily in several places in a short period of time. This presents unique problems for any court seeking jurisdiction over a party to a divorce, their children and their property. Challenges related to residency or domicile often require the assistance of a Colorado attorney experienced in military matters to achieve the best outcome.
In order to obtain a divorce in Colorado, you must be domiciled in the state of Colorado, which means that you must intend this state to be your permanent home. Merely residing in the state may not be enough for military members because service members are allowed to elect a state of residence which may be different from the place where they are currently residing.
The rule in Colorado is that if the service member is only in Colorado because of orders and has not otherwise taken steps to become a resident of Colorado (i.e. registered to vote, obtained a driver's license, opened a bank account, etc), the courts may not have jurisdiction over that individual. Only one spouse needs to be a resident of Colorado, however, in order to file for a divorce, so in the event one spouse is a service member and the other spouse who is not, jurisdiction may not be a problem.
Jurisdiction regarding military retirement division can sometimes be problematic. When a non-service member resident spouse files for divorce against a service member non-resident spouse, Colorado courts may not be able to divide the military retirement depending on the particular circumstances. Sometimes it is necessary to file an action and obtain orders regarding the division of the military retirement in the service member's state of residence.
Military Retired Pay
In Colorado, the value gained by any retirement account during the course of the marriage is considered a divisible asset and military pensions are no exception. Military pensions are considered property which can be divided during the divorce process. Military retirement is usually divided based upon the number of months of the marriage which overlap the number of months of active military service.
For example, consider the case of a service member began military service 10 years prior to the marriage, left the service two years into the marriage and re-enlisted after the divorce for a total of 20 years of service. The number of months of marriage overlapping military service would be 24 and the total number of months of military service would be 240, so the percentage of the military retirement which was earned during the marriage would be 10 percent. The non-service member is entitled to one-half of that 10 percent giving the non-service member spouse five percent of the total retirement payments once the service member spouse begins receiving them.
VA Disability Pay
There are also special rules which apply when a service member accepts separation pay or other benefits in the place of retirement. Those payments may or may not be divisible depending on the nature of the payment. VA Disability pay is not divisible by Colorado courts and so, to the extent that a service member elects to take a portion of their retirement pay in the form of VA Disability, the non-service member spouse would not receive a share of that money. However, the VA Disability does count as income for the purposes of child support and spousal maintenance calculations. However, even though the court cannot divide VA disability pay, the court is entitled to take this into account as an economic circumstance in determining how to divide other property or award spousal maintenance, also known as "alimony" in other states. The factors involved with military retirements, survivor benefits, and the complicated language that must be included in Court orders and agreements in order to legally preserve the right to receive present and future retirement benefits, must be seriously considered when deciding whether you need an attorney to assist you with your military divorce.
Due to the complex nature of military divorce in Colorado Springs, it is recommended that you contact an experienced Colorado-based attorney such as the law offices of Lynn Landis-Brown, PC.
We are proud to represent members of the armed forces at the Ft. Carson, Peterson AFB, Schriever AFB, USAF, Cheyenne Mountain Air Station Academy, Buckley AFB, and United States Northern Command (NORTHCOM)
Servicemembers Civil Relief Act (commonly referred to as "Soldiers and Sailors")
The SCRA is designed to protect the service member from having a court case proceed against them during a time in which the service member's duty prevents him or her from appearing in court. The act was written to primarily address civil judgments such as collection on auto loans and leases, but it can also include divorce and post-decree motions. The SCRA may be invoked by the court on its own motion or upon application by a service member who meets the criteria. The criteria includes that the applicant be in military service or within 90 days after it ended, the applicant must have actual notice of the proceeding, the application must be in writing and include facts stating how military service materially affects the ability to appear and a date when the service member may appear and the application must include a communication from the service member's commander that the military duty prevents appearance and leave is not attainable. The initial stay is for 90 days. A military member may apply for an additional stay using the same criteria. The court may choose to deny additional extensions and must justify the need for a stay.
Depending on the individual circumstances, a service member may decide not to assert the protection of the SCRA and proceed with the action from a distance. In Colorado Springs, we have many military installations and the courts often make accommodations for the military member to appear by telephone for both in and out of court proceedings attendant to a divorce. The courts do continue to have jurisdiction to award temporary child and spousal support even if a military spouse is absent.
Contact Lynn Landis-Brown, P.C., to schedule a consultation regarding a military divorce to be filed in Colorado.