Unique Considerations in a Military Divorce

 Posted on November 29, 2022 in Divorce

If you or your spouse is serving in the U.S. military, or has done so in the past, you know that military life can differ from civilian life in many significant ways. If you decide to divorce, virtually all aspects of the process, from the division of assets to determining child custody arrangements, will be handled somewhat differently than if you were both civilians—especially if either of you are still serving.

The Jurisdiction Question

Normally, a Texas court maintains personal jurisdiction over a divorce action when one or both spouses have resided in Texas for at least six months (and for at least 90 days in the county where the divorce action was filed.) This is also true in military divorces, but it is important to keep in mind that serving while keeping a permanent address in Texas is considered maintaining residence in the state. However, in order for a court to have jurisdiction over an active military spouse, the serving spouse must be served with a copy of the action and summons, so there is no question as to their knowledge of the proceedings. In the past, it was not uncommon for a service member to come home and discover that their spouse had divorced them without their knowledge!

It is also possible under the Soldiers and Sailors Civil Relief Act (50 USC 521) to postpone the proceeding for the entire length of a service member’s tour of active duty plus an additional 60 days if the proceeding is likely to be difficult and complex. It is in the discretion of the civilian court to decide whether or not to do so, but it is often granted, especially in times of war and elevated military conflict.

Asset Division

Many assets, such as furniture or other everyday items, are divisible as they would be in a civilian divorce, as provided in Texas law. However, certain assets and property are governed by the Uniformed Services Former Spouse Protection Act (USFSPA), including retirement accounts and military pensions. Contrary to popular belief, the USFSPA does not specifically grant any percentage of the service member’s retirement pay to his or her ex-spouse. Instead, the law grants a civilian court the power to treat this asset as community property, thus enabling the court to divide it equitably. In most cases, the disposition ends up being similar to that of a civilian pension plan.

One important thing to remember is that the military utilizes what is referred to as the 10/10 rule. If you have been married to a service member for at least 10 years, while that service member has completed at least 10 years’ worth of creditable service, you are eligible to receive a portion of his or her retirement pay. If you do not meet these criteria, you are not eligible to receive any portion of that asset unless you work out an arrangement directly with your former spouse. The court may still award alimony or child support, but retirement pay is strictly regulated.

Seek Assistance from a Tarrant County Military Divorce Lawyer

Divorce is almost never easy, and rules based on one or both spouses’ military service can make the process even more complex still. Contact a skilled Hurst service member divorce attorney to get the help you need with your case. Call 817-498-4105 for a free consultation at the offices of Daniel R. Bacalis, P.C. today.

Sources:

https://www.nclamp.gov/publications/take-1/uniformed-services-former-spouses-protection-act-usfspa/

https://guides.sll.texas.gov/community-property/property-division-in-divorce