Divorce cases involving military members present unique challenges requiring that your divorce attorney be familiar with the laws and processes governing military survivorship benefits, pensions, and jurisdiction issues.
Frequently, military members are highly mobile, and the issue of residence for jurisdiction purposes is more complicated than in an average divorce. If a military member is on active duty, located overseas, or stationed in a separate state from the spouse, a failure to file in the proper court can mean problems with obtaining the full amount of spousal support. The Uniformed Services Former Spouses' Protection Act allows a spouse to always obtain a division of retirement pay in the state of the military spouses' legal residence. The law of that state would then govern the dissolution process, and any limits on child and spousal support. In Colorado, both child support and spousal support/maintenance awards may not exceed 60% of a military member's pay and allowances.
Another unique challenge is that military members are given special protections, specifically in the form of the Service Members Civil Relief Act, which entitles a service member to delay a dissolution of marriage action, or post-decree motion while on active duty, if his or her duties prevent him or her from appearing in court. If an attorney is familiar with this process, he or she can avoid undue delay. Each military branch has its own requirements for the amount of support to be given.
When going through a divorce when one spouse is a member of the military, there are a few crucial assets that you should familiarize yourself with, namely, the pension and the Survivor Benefit Plan (SBP). Unless the marriage lasts for the entire military career, the pension can be divided using the 'marital share,' which is the amount of time that the marriage lasted over the term of the total military service. For example: if the marriage lasted 5 years, but the military spouse had served 10 years in the military, then the marital share would be half of the 5 years out of 10 years, or a total of a quarter of the pension. However, this amount is not an entitlement, a spouse must still request this amount under the laws of the state in which the dissolution proceeding was filed. If the marriage lasts 10 years concurrently with 10 years of service, one benefit that is offered is that the Defense Finance and Accounting Services will send that portion of the pension directly to the former spouse which was awarded by court order, in the form of a garnishment; this means that the former spouse will not need to look to the military spouse for payments of support.
If the marriage lasts 20 years concurrently with 20 years of service, the former spouse will be entitled to TRICARE and military medical treatment. This does not cost the military spouse anything, yet can be included in support given to the former spouse. Other considerations to assess regarding the pension are Cost-of-Living-Adjustments, and gross military retired pay versus disposable retired pay. A former spouse should attempt to get both cost of living adjustments, and have the pension figure calculated from gross military retired pay rather than disposable retired pay, which excludes medical retired pay, VA disability compensation, the SBP premium and Combat-Related Special