The divorce process is rarely easy, with both emotional and legal hurdles to overcome. When one or both spouses in a divorce are active military service members, the military divorce process in Colorado becomes more complex, with federal rules and guidelines to consider in addition to the requirements of Colorado’s state divorce laws. A military divorce requires skilled handling due to the special circumstances that impact the state’s residency requirements, serving the divorce papers, child custody, the division of assets such as military retirement, and spousal support.
In a typical Colorado divorce, at least one spouse must have been a Colorado resident for 91 or more days prior to filing a divorce petition. However, if one spouse is an active-duty service member, they may file for divorce in Colorado if they are currently stationed in the state, regardless of how long they’ve resided there.
Some service members maintain residency in their home state. When that is the case in a military divorce, the service member may choose whether they prefer to file for divorce in their home state, or in Colorado while they’re stationed there or their spouse has lived there for more than 91 days. Because each state has its own laws for child custody and the division of marital assets, choosing the state in which to file for divorce can substantially impact the outcome of the divorce terms.
The Service Members Civil Relief Act (SCRA) protects military members during deployment. This federal law requires courts to postpone a legal proceeding until the service member finishes their mission. This prevents the possibility of default divorce proceedings and also allows the service member to focus on completing their duty.
If a military member is serving overseas, the Hague Service Convention has a process-serving department responsible for serving court documents to service members. When the service member is actively engaged in military service, the Hague Convention’s process server must follow military regulations which could require waiting until the service member’s mission is complete.
Colorado courts always prioritize the best interests of the child in divorce proceedings, including in a military divorce. The courts begin with the rebuttable presumption that continued close contact with both parents is what is in a child’s best interests. When one parent is a member of the armed services, child custody and parenting-time schedules must accommodate the active duty service member’s deployments and relocation.
Military members have a “Family Care Plan” that addresses contingencies for their child’s care during deployment; however, state courts aren’t obligated to follow the plan, though they often use it as a guideline. Military parents have as much right to shared custody as other parents, but their parenting plan must include provisions for child custody during their deployment, including alternative caregivers. Some custody agreements in military divorces include visitation rights for the military spouse’s close family members, such as grandparents, during their deployment.
Colorado’s child support laws apply to military parents. Calculating child support requires a formula that considers each parent’s income, the number of children, and each parent’s total number of overnight custody days in their parenting plan.
Colorado divorce law compels spouses to divide their marital assets in a way that’s fair and equitable either through a settlement agreement or a judge’s decision in a contested divorce. Marital assets include all property, bank accounts, investment accounts, retirement benefits, vehicles, and household goods accumulated during the marriage. Military duty does not change these laws, but there are special federal requirements for the division of military retirement benefits.
A military member’s spouse is entitled to 50% of their retirement benefits; however, if the marriage is of ten years duration or longer, the service member’s branch of the military sends the spouse their retirement benefits directly during retirement. If the marriage lasts less than ten years, the military service member is responsible for providing their spouse with their portion of the retirement.
In addition, non-military spouses must leave military housing within 30 days of the finalization of divorce. They also lose their military healthcare coverage through TRICARE but may purchase additional coverage for a transitional period. Children retain their coverage until age 21.
For spouses married for more than 20 years, with a service member in active duty for at least 20 years, and those qualifications overlapping for at least 20 years, the non-military spouses may retain their healthcare coverage and other benefits following the divorce, including access to commissary, exchange, military ID card, and other privileges unless or until they remarry.
Spousal support requirements may be different in military divorces in Colorado compared to non-military divorces due to the armed service’s regulations for family support—which includes both spousal support and child support during separations until court orders are in place. The Colorado courts then apply the state’s laws for the child support obligation, but spousal support is not an obligation.
Instead, the court considers the unique circumstances of each marriage and divorce when making a determination on spousal support (alimony). A judge may include spousal support orders from a higher-earning spouse to a lower-earning spouse, particularly in cases of one spouse putting aside their own career goals and educational aspirations to care for the children and home, or to support their spouse’s education and career goals.
Spousal support may also be appropriate for spouses whose age or medical condition doesn’t allow them to enter or re-enter the workforce. Most spousal support orders have a time limit, allowing the lower-earning spouse time to become self-sufficient.
All divorces require skilled handling, but particularly a military divorce in Colorado, which requires adherence to federal requirements as well as state divorce laws. A typical divorce attorney may not have the knowledge and experience to smoothly navigate this process. A military divorce lawyer in Colorado diligently follows all of the unique requirements of a divorce involving one or both spouses on active duty in the U.S. military.
Call the trusted Denver divorce attorneys at Ciancio Ciancio Brown, P.C. today for the skilled guidance your family needs throughout this meticulous process.
