Understanding Military Divorce in Colorado

Understanding Military Divorce in Colorado

By Carl O. Graham

military family, soldier spouse

There is no such thing as a “Colorado military divorce” - the pleadings, and the procedures, are identical to any other divorce. This term, however, is used informally by clients and attorneys alike to indicate a divorce or family law case where at least one of the parties is in the military.

Colorado Springs Military Divorce Law Firm

Graham.Law are experts in military family law. We realize this is a bold claim, but we back it up - how many attorneys can truly say that? Content on websites may be ghost-written by third parties, or even be incorrect, or both!. So simply having a web page which uses a few military buzzwords is not an indication that the lawyer truly understands Colorado military divorce issues. Before consulting with an attorney, review the article Hiring a Military Divorce Attorney in the Military Divorce Guide. And during the consult, be ready to ask a few tough questions to test the lawyer’s knowledge of military divorce issues.

Our managing partner, Carl Graham, is a former Army JAG attorney and Colorado authority on military family law issues. He has written articles, teaches fellow attorneys at countless CLEs, and helps multiple attorneys every week by answering their questions about military divorce issues.

This expertise, combined with our real-world military backgrounds, explains why Graham.Law are the preeminent military divorce lawyers in Colorado Springs. We know military family law, and we also have first-hand experience with the military, with three military veterans and four military family members in our small firm!

Military Divorce Guide

If your family law case involves an active duty, reserve, or military retiree, you have a “military divorce”, and we strongly encourage you to review Graham.Law’s Military Divorce Guide. This resource, with dozens of articles, provides in-depth discussions of the legal issues unique to the military, as well as procedural challenges that you may face when one spouse is in the military.

While this article contains a broad overview of the issues involved with a military divorce in Colorado, it is no substitute for the detail contained in the Military Divorce Guide.

How to File for Divorce in the Military

While the procedure and forms are identical for civilian or military cases, there are additional hurdles for active duty military when it comes to jurisdiction, or the power of the court to hear a case.

  • Subject-Matter Jurisdiction. At least one of the spouses must be a Colorado resident for Colorado to have subject-matter jurisdiction to grant a divorce. If a spouse is a civilian working in Colorado, this is easily satisfied. But in the military, it is common for a person to be a legal resident of a completely different state than the state where he/she is stationed. So if you have dual military, for example, you are going to have problems unless one of the spouses changes his/her domicile to Colorado. Review the Jurisdiction & Service of Process article in the Military Divorce Guide for more details.
  • Personal Jurisdiction. If the service member is not a Colorado resident, there must be a basis for the court to exercise power of that person, typically by filing the petition, being served inside Colorado, consenting to jurisdiction, or having a matrimonial domicile here.
  • Jurisdiction Over Military Retirement. If a servicemember who is not a Colorado resident is served with the summons inside Colorado, federal law still requires a separate basis for jurisdiction before the court can divide the military retirement, such as consent. See the Jurisdiction to Divide Military Retirement article in the Military Divorce Guide for more details, how to object, and how to try to overcome objections and establish jurisdiction.

Can I Start a Divorce While the Service Member is Deployed?

No. You need to have personal service of the summons. For all practical purposes, without the member’s consent, you will have to wait until the member returns from deployment before initiating divorce proceedings.

The requirement for overseas service of process presuppose a functional government which is a signatory to the Hague Convention on International Service of Process, which is often not the case to places where our military deploys. And by the time you went through the time, hassle and expense of service of process, the deployment is over anyway.

Moreover, even if you could figure out a way to serve the member while deployed, the Servicemembers Civil Relief Act (formerly the Soldiers and Sailors Civil Relief Act) allows military members to delay proceedings when military service materially impacts their ability to participate. And that would certainly include a deployment.

Can a Military Spouse Receive Alimony & Child Support?

There are two ways for a military spouse to secure support from the service member. First, the spouse may be entitled to temporary family support (which includes alimony or child support).

Each of the branches of the service has a regulation requiring its members to provide support for family members during periods of separation, absent agreement or court order to the contrary. See the following articles in the Military Divorce Guide for more details, depending upon the member’s branch of service:

  • Air Force. Note that their requirements are too vague to be of real value.
  • Army. Required to pay BAH-II to separated family members, pro rata, with some exceptions.
  • Coast Guard. Required to pay BAH-Diff, plus a percentage of base pay depending upon number of dependents.
  • Marines. Required to pay a fraction of BAH/OHA, depending upon number of dependents.
  • Navy. Required to pay a fraction of “gross pay”, defined as base pay plus BAH, depending upon the number of dependents.

Second, just like any other spouse, the military spouse may be entitled to maintenance (alimony) from the member under Colorado law, assuming a need, and a sufficient disparity in income. Likewise, if there are children, the court will order child support per the Colorado child support guidelines.

Finally, military pay, as well as military retirement and VA disability (under some circumstances) may be garnished to pay maintenance or child support.

Does BAH Count as Income?

Yes. Even though BAH, BAS, and certain other military allowances are not taxable, they still count as income under Colorado law. Moreover, if the member lives in military housing and does not receive BAH, under the law BAH will be “imputed” - i.e. added to his/her income. For more details, see the article Understanding Military Pay & the LES in the Military Divorce Guide.

Colorado’s expansive definition of income includes all pay and allowances, including the non-taxable ones, and including overseas COLAs, as well as Hostile Fire Pay, Family Separation Allowance, and other pay received while deployed.

Does Reserve Pay Count as Income?

Probably not. If the member has a full-time, 40/hr week job, and is a part-time military reservist, as with any other second job the military reserve hours will not count as income for the purposes of calculating child support or maintenance, unless reserve duty is a condition of employment (which would be rare).

Note that reserve pay is an economic circumstance the court is allowed to consider for purposes of deviating from the guidelines, but such deviations are rare.

Is VA Disability Income?

Yes. This surprises most veterans and retirees, since VA disability payments are not divisible as a marital asset. However, Colorado law counts disability payments as income for purposes of calculating child support and maintenance, even though disability is tax-free and not divisible. And federal law does not prevent states from counting disability as income.

Likewise, combat-related special compensation (CRSC) is also income, but like VA disability, CRSC is not divisible.

Spouse Entitlement to Military Retirement

A former spouse may be awarded a share of the military retirement, regardless of duration of marriage. (The “10/10 rule,” requiring 10 years of marriage, is only for direct payment from DFAS - a court may award retirement after any number of years of marriage. But if there are fewer than 10 years of service, the member will have to pay the spouse directly, rather than the money coming from DFAS. See the Division of Military Retirement in Colorado article in the Military Divorce Guide for more information.

If the member receives VA disability, with a rating of 40% or lower, he/she will have to waive retirement, dollar-for-dollar, to receive VA disability. Under a 2017 U.S. Supreme Court ruling, Howell v. Howell, the court may not order the retiree to indemnity the spouse for the reduction in military retirement, though the judge may take into consideration the VA waiver for purposes of alimony or the division of the rest of the marital estate. For more information, see the VA Disability in a Divorce article in the Military Divorce Guide.

Finally, you need to know about the Blended Retirement System, new for 2018 and the most radical change to military retirement in decades. It combines elements of the traditional military pension with a "beefed-up" Thrift Savings Plan. The traditional pension is less valuable, as the multiplier has decreased from 2.5% to 2%, but the TSP is looking more like a military version of a 401(k), and now includes employer matching funds.

Calculation of Spouse Share of Military Retirement

Previously, determination of the former spouse’s share of the military retirement was left to the states, but that changed in December 2016 with the passage of the 2017 National Defense Authorization Act. Now, federal law provides for a “frozen benefit rule” which states must apply when the member is still serving in the military at the time of divorce.

In short, the “frozen benefit rule” means that the former spouse no longer shares in promotions or longevity increases which happen after the divorce - i.e. the spouse’s rights are “frozen” as of the date of the divorce, except for annual COLAs. The calculation of retirement under the rule is more complicated than it used to be, so see the article Calculation of Military Retirement Pay & Shares for a complete explanation, examples, and a link to our military retirement calculator.

If the member is already retired as of the date of dissolution, or the decree awarding the former spouse a share of the retirement was issued prior to 12/23/2016, then in Colorado the spouse is entitled to a share of the military retirement based upon the Hunt-Gallo formula, which calculates the marital share by dividing the months of marriage overlapping military service by the total months of service at the time of retirement. Note that under this formula, the former spouse does receive the benefit of post-divorce promotions and longevity increases.

Survivor Benefit Plan (SBP)

To protect the former spouse’s share of the retirement if the retiree dies first, the court may order the retiree to select the survivor benefit plan, or SBP, and for the parties to divide the premiums. See the Survivor Benefit Plan (SBP) article in the Military Divorce Guide for more information.

Parenting in the Military

Military members move - it’s a basic fact of life that a PCS will always be just around the corner. And the military parent cannot relocate the children without either the consent of the other parent, or permission from the court. See the Relocation of Children article for more information.

And when parents move, that triggers a variety of issues, including turning a local parenting plan into a long-distance one, and figuring out expenses for the transportation of children.

Another fact of life is that most military members will deploy at some stage. Sometimes often. Fortunately, many states, including Colorado, now have protections for service members who deploy, and even those who do unaccompanied tours to Korea. Colorado has adopted the Uniform Deployed Parents Custody & Visitation Act, which provides that any custody changes while a parent is deployed are only temporary, and there are provisions for the children to have contact with other family members while the military parent is gone.

Review the Military Divorce Guide!

Did we mention that this is just an overview, and complete details and analysis are available in the Military Divorce Guide? We strongly urge you to review the Guide, and then to schedule a consult with a qualified attorney to discuss the specifics of your case. We would be honored for you to consider the Colorado military divorce lawyers at Graham.Law.

Do You Need a Military Divorce Lawyer in Colorado Springs?

The family law attorneys at Graham.Law have years of experience helping clients through the Colorado legal system. We know Colorado family laws, inside and out, from divorce to legal separation, from annulments to military divorce issues. And we understand the unique issues presented in military divorce cases. For more information about our El Paso County military divorce firm, click on:

Colorado family law is all we do. Period.

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Divorce