Divorce brings many unique issues and gets more complex if one or both parties are military members. Military divorce isn’t a legal term but indicates that one spouse, or both, serves in the military or retired from the service. The state law of the state where the divorce is filed still applies, but there are some special federal laws that affect the outcome when there are service members involved. Here are just some of the differences that are unique to military divorces:
- Active Duty military can often bypass the strict State law residency requirement of living in the State of Texas for 6 months prior to filing for divorce if the military duty is what prevented them from living in Texas.
- If an active duty service member is deployed during the divorce proceeding and cannot participate in a hearing, the hearing can be postponed until they return from military deployment;
- Special provisions for child custody may apply if the parent will be deployed during periods that they would normally have possession of the child;
- Child Support is affected by the character of pay as nontaxable or taxable and the inclusion of housing allowance may create an erroneous calculation of child support if that amount will immediately change upon divorce; the lawyer must know how to interpret the LES when calculating child support;
- Although the DFAS has its own rules about division of retirement based on the length of marriage (ie: the “10-year rule”), if the State law is more favorable, the decree can be written in a way to work around the military’s rules on distribution of retirement funds;
- In order to take advantage of direct payments of the retired pay from DFAS and other benefits such as the Survivor Benefit Plan, there are some strict notice requirements;
- The retirement division order (DRO) must comply with the military’s required language;
- Military dependent children have some benefits that need to be safeguarded in the final decree, such as the college education benefits, Tri-Care health insurance, and commissary privileges;
- If the marriage is nearing the 20 years of credible service during marriage, the divorce might need to be postponed until after the 20 years has been completed to avoid losing valuable benefits to the nonmilitary spouse.
When faced with a military divorce, it’s vital to engage the services of a family law firm in San Antonio, TX. The lawyers should be conversant with the issues around this type of divorce. Understanding the complex issues around it will empower you to make better decisions and enhance a fairer outcome.
Do I Need a Special Reason to File for Military Divorce?
Anyone serving in the military can file for a military divorce, just for the same reasons as civilians. A military divorce is still a divorce as far as state laws are concerned. The same factors that lead to the breakdown of a civilian marriage could contribute to divorce for spouses in the military.
The difference arises in that there’s a need to understand the intricacies of military life and how they affect divorce. It’s also essential to consult a military divorce lawyer in San Antonio for advice on the relationship between military divorce and military service, federal statutes, state statutes, and the potential impact of the divorce proceedings.
Grounds for Military Divorce in Texas
Common reasons why people file for a military divorce in Texas coincide with those of a civilian divorce case. A party to the marriage can provide the court with the following reasons:
- Lack of support
- Abandonment for one year
- Confinement in a mental hospital for three years with no chance of recovery
- Separation for three years
- Imprisonment for at least one year
- Or the MOST important, no-fault ground of irreconcilable differences.
If you want to file a military divorce for reasons other than these listed here and aren’t sure if they are legal grounds for divorce, don’t hesitate to contact a military divorce attorney in San Antonio, TX, for skilled legal counsel.
In What State Should I File for Divorce?
Your domicile or legal residence determines where you can file for military divorce. In legal terms, your “residency plus intent to remain” dictates where to file for the divorce. You or your spouse must have lived in your preferred state for at least six months and county for 90 days to file a divorce. However, if the military orders prevented you from living in the location of your choice, then you may choose to designate any county and state as your residence, even though you don’t actually live in that location. Many service members who are stationed in other states choose to file their divorce in Texas because of the shorter waiting period in Texas for finalizing the divorce.
Your San Antonio military divorce lawyer can access the domicile factor by evaluating your contacts and connections with a specific state. For example, they will look at your:
- Identification cards
- Income Tax Returns
- Vehicle registrations
- Mailing address
- Driver’s license
- Voter’s registration
- Other permits.
Before choosing where to start the divorce process, it’s crucial to establish how the state handles the division of military pensions. At the federal level, the division of the military pension is the jurisdiction of the Uniformed Services Former Spouses Protection Act (USFSPA). However, Texas remains a community property state, and the retirement earned during marriage does not lose its character as community property. Although DFAS may refuse to provide direct payments to the ex-spouse, the Texas judge can still order the military member to pay his or her ex-spouse their fair share once it is received each month, or the judge may choose to award other property of equal value in place of the military retirement.
Will the Military Give Me a Lawyer?
The various branches of the military have legal assistance attorneys located in most bases. They cannot provide legal representation in the divorce proceedings but can:
- Review and revise your legal documents
- Write letters for you
- Provide legal counsel
- Negotiate on your behalf
Your spouse can also seek help from divorce attorneys at any base or branch. However, engaging a civil San Antonio military divorce lawyer is probably the best bet in most cases because the military attorneys will not appear in state court for you and they might not even be licensed to practice law in this state. A lawyer who regularly handles divorces in this location will be more familiar with local rules, state laws, and the local judges.
How Is Child Support Determined and Collected in Military Divorce?
One of the most crucial elements of a military divorce is child support. Generally, it is determined depending on the total entitlements, like the base pay and basic allowance for housing and subsistence. It also accounts for other special payments to the spouse in the military.
Once the court determines the child support amount, you can only have it changed through court. You’ll have to set another court hearing for the modification. Texas courts usually follow the state child support guidelines to determine the amount. In military divorce cases, courts also consider the potential for these amounts to change based on base transfers and deployments. However, it is essential for your lawyer to know how to interpret the LES of the person paying child support and know what to argue to inform that court of income that will immediately change, such as the housing allowance, as soon as the divorce is finalized. It is also important for the lawyer to be able to distinguish between which portions of the pay are taxable and nontaxable, which will also affect the child support.
Does Being a Service Member Complicate Marital Property Laws?
In a military divorce, all items considered “marital property” are divisible, although there are exceptions to the rule. The situation becomes further complicated if both spouses serve in the military.
The hardest part is dealing with military retirement benefits as they are subject to division as marital property, but military disability payments aren’t. The length of a military marriage, the length of military services, and the overlap between the two are relevant factors in determining the outcome of the division of marital property and spousal support.
Fight for Your Family’s Future with Skilled Legal Representation
Military divorce presents various complex issues that may not be present in a civil divorce. When faced with a military divorce, your future may seem uncertain, but it’s not all gloom, and you don’t have to go through the process alone. A military divorce attorney in San Antonio can provide the legal support you need through this complex process for a favorable outcome.
Our family law firm in San Antonio can help you navigate your military divorce and answer all the questions you might have. We have experience in military divorce proceedings and believe you deserve representation that will work in your favor. Contact us today to schedule a consultation with compassionate divorce lawyers who are familiar with the special rules related to military divorces as well as local and state laws.