Facing the end of a marriage, and all the emotional, financial, and legal ramifications that go along with it, is difficult under the best of circumstances. When one (or both) of the parties is in the military it can make an already difficult process even more complicated. Navigating the unique challenges faced by a service member or non-military spouse during the divorce process can be extremely challenging without an experienced attorney by your side. The experienced military divorce attorneys at Boyd Family Law can provide you with the guidance and advocacy you need if you are facing a military divorce in Texas.
Although the basic concept of divorce is the same whether the parties are service members or not, there are a number of practical and legal differences that are crucial to understanding if you are embarking on military divorce. Everything from the ability to initiate the divorce process to parenting time to retirement benefits may be handled differently when a service member is a party to a divorce. Working with an attorney who is unfamiliar with these differences can result in wasting both time and money during your divorce.
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One of the most important aspects of a military divorce is the application of the Servicemembers Civil Relief Act (SCRA). The SCRA covers all active duty service members, reservists and the members of the National Guard while on active duty. It prevents litigants from pursuing certain actions, including divorce and child custody cases, against certain military personnel without a court order. In addition, individual states may also have similar SCRA laws that go above and beyond the protections afforded under the federal SCRA. Consequently, one of the first hurdles when pursuing a divorce involving a service member is whether you are allowed to initiate the divorce process.
The division of debts and assets is something that must be handled in any divorce. Often, that includes dividing retirement and pension pay due to one (or both) spouse. When a service member is involved in a divorce, retirement pay, or disability benefits can make the division of assets considerably more complicated.
As a general rule, military disposable retirement pay is subject to division during a divorce. On the other hand, VA disability compensation, military disability retirement benefits, Special Combat-Related Compensation (SCRC), and Concurrent Retirement and Disability Pay (CRDP) are usually not subject to division during a divorce. Complicating matters is the fact that when a service member is awarded disability compensation that service member usually has to waive an equal amount of retirement pay. In other words, if a service member receives $1000 per month in disability pay, any retirement pay he/she is entitled to will be reduced by that same $1000 per month. For a non-military spouse, that also means that the retirement assets available for division during a divorce have been reduced or even eliminated entirely. Special Combat-Related Compensation and Concurrent Retirement and Disability Pay do not require the same waiver of retirement pay. Knowing how each type of military retirement/disability pay is treated in a divorce is crucial for both a service member and a non-military spouse embarking on the divorce process.
When a divorce involves minor children, issues related to custody (referred to as “conservatorship” in Texas) and child support must be decided during the divorce process. Of all the issues in a divorce, child custody is often the one that causes a divorce to become acrimonious. In a military divorce, additional circumstances related to serving in the military can further complicate matters.
When custody of a minor child is disputed in a divorce, the court must consider the “best interest of the child” when deciding who will be the managing conservator (primary custodial parent). One factor that plays an important role in that decision is a parent’s ability to provide the child with stability. For a service member who may be deployed or move from his/her current base to one in another state at any time, stability can be elusive. For a non-military spouse, divorce can mean moving out of military housing and the desire to move closer to family members that may be hundreds of miles away. Creating a Parenting Plan – something that is required before a divorce can be finalized – can be difficult when a service member is involved given the uncertainty that comes with being in the military.
Child and spousal support can be equally complicated to determine in a military divorce. Determining what counts as “income” for the purpose of calculating child support can be challenging. In addition, spousal support is often requested by a non-military spouse in a divorce because it can be difficult for a non-military spouse to maintain consistent employment, much less advance in a career, because of the nature of being a military spouse.
If you are in the military, or you are the spouse of someone who is, and you are contemplating divorce, contact an experienced Fort Worth military divorce attorney at Boyd Family Law to discuss your legal rights and options to schedule your appointment today.