Military Divorce

Military Divorce Law Firm in Colorado Springs

Divorce in Colorado for military personnel is the same as it is for civilians; however, servicemembers face some unique obstacles that we at Aviso, as former active duty officers and Judge Advocates, fully understand.

Some of these obstacles and areas include:

Jurisdictional Issues
Military Retirement
Thrift Savings Plans (TSP)
Basic Allowance for Housing (BAH)
VA Disability
Life Insurance
Hazard Duty Pay
Servicemembers Civil Relief Act (SCRA)

Military Divorce Jurisdiction

To obtain a divorce in Colorado, you must be a resident of the state of Colorado. Normally, merely residing in the state will qualify you as a resident; however specific rules apply to military members generally due to the fact many servicemembers elect a state of residence different from the one they are stationed.

For example a servicemember may be physically living in Colorado Springs but elects to pay taxes in Kansas.

According to Colorado Law, if the servicemember 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, transferred insurance, opened a bank account, etc.), the courts do not have jurisdiction over the servicemember.
However, only one spouse needs to be a resident of Colorado to file for a divorce. Therefore, if one spouse is a servicemember and the other is not but has a job in Colorado or pays taxes in Colorado. Colorado would have jurisdiction.
Even if Colorado can exercise jurisdiction over a servicemember, the court may not have jurisdiction to divide a military retirement unless the servicemember initiates the divorce proceedings.

The military divorce attorneys at Aviso Law understand the obstacles military members face when going through a divorce and will provide military members the service and dedications their case deserves.

Division of Military Retirement in Colorado Divorce

Certain Military retirement benefits are considered marital property in Colorado and are subject to division in a divorce. The division of these benefits is governed by the Uniformed Services Former Spouses' Protection Act (USFSPA) and it is important that you speak with an experienced family law attorney to learn your rights.

Key Factors in Division:

Marital Portion:

The court will determine the portion of the military retirement that was earned during the marriage. This is known as the "marital portion."
The non-military spouse is typically entitled to a share of this marital portion.

Calculating the Marital Portion:

Frozen Benefit Rule: If the military member is still on active duty, the court will use the member's current rank and years of service to calculate the marital portion.
Coverture Formula: If the military member is already retired, the court will use the Coverture formula to calculate the marital portion. This formula divides the number of months of military service during the marriage by the total number of months of military service.

Awarding the Marital Portion:

The court will typically award the non-military spouse 50% of the marital portion of the military retirement.
However, the court may deviate from this 50/50 split in certain circumstances, such as if one spouse contributed significantly to the other's military career.

Important Considerations:

Direct Payment: The non-military spouse may receive their portion of the military retirement directly from the Defense Finance and Accounting Service (DFAS) if the marriage was over ten years in length.
Survivor Benefit Plan (SBP): The court may also consider the division of SBP benefits, which provide income to a surviving spouse.
Consult with an Attorney: Military divorce can be complex, and it's essential to consult with an attorney experienced in military family law to ensure your rights are protected.

Thrift Savings Plans (TSP)

Division of a TSP in a Colorado Divorce

A Thrift Savings Plan (TSP) is a retirement savings plan for federal employees (Civil and Military). In a Colorado divorce, a TSP can be divided as part of the overall property division.

Key Points to Consider:

Marital Property: The portion of the TSP accumulated during the marriage is considered marital property and is subject to division.

Division of the Marital Portion: The court will typically divide the marital portion of the TSP equitably, though not necessarily equally.

Future Contributions: Contributions made after the divorce are considered separate property and are not subject to division.

How the Division Process Works:

Court Order: The divorce decree or a separate court order will specify how the TSP is to be divided. If the court order does not have necessary information or it does not comply with the federal regulations regarding division a RBCO.

RBCO: a sperate order may need to be drafted.

RBCO Submission to TSP office: The RBCO is submitted to the TSP, which then processes the division of the account.

Important Considerations:

Consult with an Attorney: It's crucial to consult with a family law attorney experienced in dividing retirement accounts to ensure your rights are protected.
Understand the Tax Implications: Dividing a TSP can have tax implications. Consult with a tax professional to understand the potential tax consequences.

By understanding these factors and seeking legal advice, you can ensure a fair division of your TSP in a Colorado divorce.

Basic Allowance for Housing (BAH)

Yes, Basic Allowance for Housing (BAH) is considered income for purposes of calculating maintenance and child support in Colorado divorces.

This means that BAH, even though it's not taxable income, is included in the calculation of a military member's income for determining support obligations.

It's important to note that the specific calculation of child support and maintenance can be complex, especially in military divorces. Consulting with an experienced family law attorney can help ensure a fair and equitable outcome.

VA Disability

Is VA disability divisible in a Colorado Divorce?

No, VA disability benefits are not divisible as marital property in a Colorado divorce.

While VA disability benefits are not directly divisible, they can be considered income for purposes of calculating child support and spousal maintenance. This means that the court can factor in VA disability benefits when determining the amount of support that a veteran should pay to their former spouse or children.

However, it's important to note that the specific rules and regulations regarding the division of assets and the calculation of support obligations can be complex and may vary depending on individual circumstances. Therefore, it is advisable to consult with an attorney experienced in military family law to get personalized advice.

Servicemembers Civil Relief Act (SCRA)

The Servicemembers Civil Relief Act (SCRA) provides significant protections for active-duty military personnel facing legal proceedings, including divorce. It aims to ensure that service members are not disadvantaged due to their military service.

Here's how the SCRA specifically protects service members in a Colorado divorce:

Stay of Proceedings:

Temporary Pause: The SCRA allows a service member to request a temporary pause or stay of divorce proceedings if they are unable to participate due to military service. This can be particularly helpful during deployments or training exercises.
Sufficient Supporting Information: The service member must provide sufficient information to the court to justify the stay, such as deployment orders or military leave schedules.

Protection from Default Judgments:

Notice and Opportunity to Respond: The SCRA requires that proper notice be given to a service member before a default judgment can be entered against them. This ensures that they have an opportunity to respond to the claims and participate in the proceedings.
Setting Aside Default Judgments: If a default judgment is entered against a service member due to their inability to appear in court, the SCRA allows them to petition the court to set aside the judgment.

It's important to note that the specific protections afforded by the SCRA may vary depending on the individual circumstances of the case. It's advisable to consult with an attorney experienced in military family law to fully understand your rights and how the SCRA may apply to your situation.

The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) is designed to protect the rights of military parents during deployments. Here's how it safeguards servicemembers in custody cases:

Preserving Parenting Time:

Maintains Existing Arrangements: The UDPCVA ensures that a deployed parent's existing parenting time arrangement remains in effect, even during deployment.
Facilitates Remote Parenting: The Act encourages the use of technology to maintain a connection between the deployed parent and the child, such as video calls or emails.
Temporary Adjustments: In certain circumstances, the court may temporarily modify parenting time arrangements to accommodate the deployment, but the goal is to return to the original arrangement upon the parent's return.

Protection Against Unfair Modifications:

Prevents Unnecessary Changes: The UDPCVA discourages unnecessary modifications to parenting time arrangements during a deployment, unless there's a significant change in circumstances that affects the child's best interests.
Burden of Proof: The burden of proof lies on the party seeking to modify the parenting time arrangement to demonstrate a substantial change in circumstances.

Post-Deployment Transition:

Facilitates Smooth Transition: The UDPCVA provides guidelines for a smooth transition back to the original parenting time arrangement upon the parent's return from deployment.
Addresses Potential Issues: The Act helps address potential issues that may arise during the transition period, such as the child's adjustment to the parent's return and any necessary modifications to the parenting plan.

By providing these protections, the UDPCVA helps ensure that deployed military parents can maintain a strong bond with their children and minimize the impact of deployment on their family relationships.

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