How Long Does a Military Divorce Take?
Getting a divorce isn’t instantaneous. When clients ask me for a timeline, I always tell them to expect the divorce process to take longer than expected. The legal paperwork to divide assets can take time, and disagreements can prolong the process, especially if children are involved.
But how long does the divorce process take if you or your spouse is an active servicemember in the U.S. Armed Forces? The answer is more complicated than you might think.
Military divorces, with their unique complexities and higher divorce rates than the national average, require a more involved legal process. It’s natural to wonder: just how long does a military divorce take? This article sets reasonable expectations for what to expect from a military divorce in Colorado.
Expect a Military Divorce to Take Longer
The biggest distinction between a military divorce and a civilian divorce is that one of you took an oath of service. One of you made a commitment that you’re still obligated to honor.
I’ll be the first to admit that for those of us who have never served in the military, there are lifestyle differences that civilians may not completely understand, which can create conflict.
Fortunately, there are laws in place to protect service members from being taken advantage of in ongoing divorce matters. Let’s review them to understand better how long a military divorce takes.
Federal Laws Affect Military Divorces
Two federal laws apply to military service members in divorce matters that civilians should be aware of:
- Servicemembers Civil Relief Act – Protects servicemembers from default judgments
- Uniformed Services Former Spouses’ Protection Act – Protects service members’ pensions
Depending on the circumstances, each law’s application is bound to affect your divorce timeline.
Servicemembers Civil Relief Act
Active duty service members are subject to federal government orders. They can be deployed anywhere at any time. If this is you, imagine you are deployed, and your spouse decides enough is enough and files for divorce. In Colorado, individuals served with divorce papers have between 21 and 35 days to file a response with the court. But what if you’re out of the country?
State laws will not protect you from the court deciding your divorce case (called a summary judgment) because you cannot be in two places simultaneously. That’s why the Servicemembers Civil Relief Act (SCRA) exists.
The Servicemembers Civil Relief Act protects military members from the consequences of inaction and court proceedings while they fulfill their obligations to the U.S. government. It allows servicemembers to request a pause in or delay of court proceedings if they are on active duty, deployed, or within 90 days of release.
This is called a stay of proceedings, and it can apply to any divorce-related claim, from alimony to division of military entitlements.
To qualify for SCRA, the servicemember must:
- Receive federal orders that will last more than 30 days
- Explain why military duty precludes participation or appearance
- Provide a potential availability date
- Provide a letter from their commander stating that military duty precludes attendance and that leave is not currently available
A service member can request a longer stay if military duty continues to impact their ability to appear in court. The courts can grant additional stays. However, a military spouse doesn’t get indefinite stay requests. Ultimately, stays can determine how long it takes for a divorce to finalize. Additionally, courts have been more willing to adopt remote appearance technology such as Zoom or Webex, which may allow for the Courts to move forward with the case even during a deployment. A court may be more inclined to grant this accommodation rather than delay your case significantly.
Hopefully, you’re beginning to understand why getting divorced in the military can take longer. If you are a civilian, the timeliness of your divorce case doesn’t take precedence over your spouse’s military obligations.
Uniformed Services Former Spouses’ Protection Act
The other federal law that could impact the length of your military divorce is the Uniformed Services Former Spouses’ Protection Act (USFSPA). The Uniformed Services Former Spouses Protection Act grants military members the right to treat military pensions like marital property in divorce matters.
Depending on the circumstances of your divorce, the USFSPA can be a double-edged sword.
For instance, it can help civilians who want a slice of military retirement pay get it. The law has its limits, however. The service member can choose not to consent to a state court using this law to divide the pension. Also, the law doesn’t:
- Apply retroactively
- Allow for the division of disability benefits
Furthermore, your marriage must have lasted at least 10 years while the service member was on active duty to qualify for USFSPA. It’s also worth mentioning that courts can’t divide the pay unless they have jurisdiction over the service member. These are all factors that could alter the timeline of your divorce.
How Colorado Divides Military Pensions in Divorce Matters
It’s essential to note that in Colorado, a military pension is considered marital property and can be divided equally in a divorce as long as all the necessary criteria are met. USFSPA covers all benefits earned during the marriage but does not extend to benefits earned after the divorce. For instance, if a divorced service member receives a promotion, their ex-spouse would not be entitled to any new benefits.
The court’s authority to divide property is limited to the authority it had on the date the divorce was finalized. In other words, a spouse can’t get a share of the pension unless the Colorado court has the authority to hear the case. C.R.S. 14-10-106
The Supreme Court of Colorado affirmed this principle in 1992, In re Marriage of Booker, ruling that the USFSPA could not be applied retroactively. In sum, the court cannot pursue a portion of your military pension after your divorce is finalized.
Keep in mind that even if the court in Colorado cannot directly issues orders to divide your pension, they can still take the pension into account when issuing other orders. The Court may order that the other spouse may receive a higher percentage of other marital assets or order they receive a large amount of spousal support to compensate for any pension that a service member receives.
How Colorado Handles Disability Benefits in Divorce Matters
Service members who are considered at least 30% disabled may be eligible for a military disability retirement plan.
Some military members choose to receive disability benefits and waive a corresponding amount of military retirement pay. If a service member gives up retirement pay to get disability benefits, that waived amount cannot be split in the divorce.
In such cases, the waived portion of the military retirement pay is not considered marital property and, therefore, is not subject to division in divorce cases. This was affirmed in the case of In re Marriage of Tozer, where a wife was trying to receive part of her husband’s military disability retirement and disability benefits from the Department of Veteran Affairs. The trial court found the USFSPA precluded the Colorado state court from dividing military disability benefits as marital property, and the appeals court affirmed the order.
Just as with pensions, even if the court does not have the authority to divide disability benefits, they can always consider the benefits in how they distribute other assets. For example, a court may note the service member’s benefits in a decision that grants the other spouse more than half of other marital property.
State Laws Still Apply to Servicemembers
State laws generally govern most divorce proceedings, which can be complicated by spousal support, child support, and child custody. Adding federal laws can complicate the divorce even further. As a result, state laws are the only protections Colorado civilians have when divorcing a military service member because the state laws level the playing field.
Military affiliation is irrelevant to the courts regarding divorce matters involving alimony, child support, or child custody.
Military Regulatory Financial Support
Military rules require support for families. For instance, spouses living apart from active duty members are eligible to receive financial aid from the government based on the service member’s rank. Unless a court order is established, spouses can request help from the Inspector General’s office.
Military pay that is eligible for division for support determinations includes the following:
- Basic Pay – a service member’s monthly salary exclusive of allowances
- Basic Allowance for Housing (BAH) – a service member’s housing, either on- or off-base
- Basic Allowance for Subsistence (BAS) – A service member’s food allowance
There are also overseas military pay that can include additional allowances for costs of living overseas.
Child Support
Military personnel based in Colorado are expected to adhere to the state’s guidelines when it comes to providing child support based on three factors:
- The income of the parties
- The number of children
- The number of overnights of the children with each parent
Other costs can include education-related childcare costs, medical and dental insurance premiums, and sometimes extraordinary medical expenses. C.R.S. 14-10-115
The Uniform Interstate Family Support Act
The Uniform Interstate Family Support Act (UIFSA) governs interstate establishment, enforcement, and modification of child support orders. Colorado courts can claim child support jurisdiction over a non-resident parent if that’s where the child lives.
Alimony
Alimony, also known legally in Colorado as spousal maintenance, is governed by state guidelines. Property and debt must be divided before an alimony award is determined in a divorce case.
Trial courts generally consider the following factors when considering alimony:
- The amount of each party’s gross income
- The marital property awarded to each party
- The financial resources of each party for marital or separate property
- Reasonable financial need based on the marriage’s status quo
- The tax consequences of awarding alimony
The court then has to consider a laundry list of other factors from C.R.S. 14-10-114
Child Custody
Divorce in the military with a child can make things more complicated. Reassignment and temporary duty requirements can complicate family support matters. As a result, child custody is treated differently than child support. Colorado law generally prohibits moving children out of the state without an agreement or permission from the court. Courts generally favor acting in the child’s best interest and not moving them.
How to File for Divorce in the Military
Filing for a military divorce in Colorado mandates certain conditions be met.
File the Initial Divorce Papers
Also called a divorce complaint, the initial divorce papers can be filed by the military or non-military spouse. If the civilian spouse is the one filing, remember that active servicemembers can file for an extension under the SCRA. However, the military spouse has to file a request within seven days of the filing to stay the proceedings.
Meet Colorado’s Residency Requirements
Like civilian divorce, certain jurisdictional requirements must be met to file for divorce in Colorado when one spouse is in the military.
Like civilians, the spouse of an armed services member must be stationed in Colorado for more than 90 days.
If the military spouse has been stationed in Colorado for a significant period and has established a home base, the court may find that it has jurisdiction.
This was the case in Collins v. Collins, where a sergeant stationed in Colorado for nearly two years was granted a divorce in the army. What helped his case was the fact that he intended to remain in Colorado for an indefinite amount of time or until his military obligations required him to move. As a result, the court found that this established his legal residence in Colorado.
If you do not intend to stay in Colorado once you are no longer stationed in the state, you may not meet the requirements of residency. It is important to talk to an attorney before filing your case.
How Long Does a Divorce Take For Civilians Married to Servicemembers?
When individuals decide divorce is right for them, many focus on how long is the divorce process. My team wants you to consider turning your attention to getting the best divorce settlement. Let’s discuss how our family law attorneys can protect your rights and ensure your military divorce doesn’t drag out. Call 303-688-0944 to begin your case assessment.
