Military Divorce

10.27.17

Categories: Military Divorce

Divorce law in the state of Colorado is complex, and to properly advise clients, Colorado divorce attorneys need to have extensive knowledge of state statutes and case law. Additionally, because of Colorado’s storied history with the U.S. Military, and as a result of the many military bases in Colorado, it is imperative for a divorce attorney in Colorado to understand how military service effects divorces in Colorado. There are several issues that frequently come up in my representation of military clients, and the purpose of this article is to provide a brief summary of the law relating to each of those key issues.

JURISDICTION

The first question to answer is whether Colorado is the appropriate place to file your case, or in legal terms, whether Colorado has jurisdiction. Jurisdiction refers to a court’s ability to hear a case and make decisions relating to people and to property. In Colorado there is a requirement that at least one of the parties have been domiciled in the state of Colorado for at least 91 days prior to filing for a dissolution of marriage. “Domicile” does not necessarily mean physical presence. McMillion v. McMillion, 522 P.2d 125 (Colo. 1974). For example, a person in the military service may reside in another state but have his or her domicile in the state of Colorado.

Additionally, just being stationed in Colorado is not necessarily enough to establish domicile.

In deciding whether a party is a considered domiciled in the state of Colorado, the court will consider several factors including, but not limited to:

  • Where that person was stationed previously.
  • Whether the person purchased a home in Colorado or another state.
  • Where the person has claimed residence before.
  • Where the person grew up.
  • The state the party claims as his or her Home of Record.
  • The party’s state of legal residence on Leave and Earnings Statements.
  • Whether the party intends to make Colorado his or her permanent home.

 

In addition, in order to enter orders that affect the respondent personally, such as child support, division of property, or attorney’s fees, Colorado requires personal jurisdiction over the respondent. The most common way to obtain personal jurisdiction over a respondent if they live in the state of Colorado is to personally serve him or her within the state of Colorado. In other words, a process server or other qualifying individual is sent to the other party’s home with the divorce paperwork. In military cases, as was mentioned previously, often the respondent does not live within the state of Colorado.

For respondents living out of state, Colorado has what is called a “long-arm statute.” Under that statute, a Colorado district court can obtain personal jurisdiction over a respondent via personal service outside the state of Colorado, if that person has engaged in certain conduct or activity that essentially voluntarily submits to jurisdiction in Colorado. For example, if the parties established a matrimonial home within Colorado and one of the parties has, without interruption, continued to be domiciled in the state thereafter, the other party may be served outside the state. C.R.S. § 13-1-124(1)(e). Many military installations are federal enclaves requiring the serving party to coordinate with military authorities. Additionally, if a party is overseas, the serving party must comport with the Hague Convention.

DIVISION OF MARITAL ASSETS

Another issue, that frequently arises in military divorces is the issue of how to divide the marital assets, particularly with regard to military benefits. In general, pursuant to C.R.S. § 14-10-113, property acquired before marriage is considered separate and property acquired during the marriage is presumed to be marital. There are exceptions to this rule, of course, including inheritance, gifts, and property excluded by agreement, but the list is too extensive for this article. Additionally, if the value of separate property is greater at the time of divorce than when the parties married, the increase in value of the separate asset is considered marital as well.

Thus, in general, retirement benefits accrued during the marriage are marital property and subject to division. However, division of military assets requires a knowledge of both the applicable state and federal statutes, and often different rules apply to military divorces. The division of military retired pay, for example can be quite complex.

RETIRED PAY

A party’s military retirement benefit may be distributed as marital property in a dissolution of marriage case. Such division, however, is subject to both state rules and the Uniformed Services Former Spouses’ Protection Act. 10 U.S.C. § 1408(c)(4), which saw some big changes in 2017, including a transition in how retirement pay division is calculated from the “Time Rule Formula” to the “Freeze Time Formula.”

The UFSPA requires that the person either reside in the state for a different reason other than just military orders, have domicile in the state (as mentioned above), or consent to the jurisdiction. Thus, the USFSPA preempts Colorado law and takes away Colorado’s jurisdiction absent domicile or the servicemember’s consent. In re Marriage of Akins, 932 P.2d 863 (Colo. App. 1997).

Additionally, only disposable retired pay may be distributed. In re Marriage of Poland, 264 P.3d 647, 650 (Colo. App. 2011). The USFSPA defines “disposable retired pay” as gross military retired pay less the cost of the Survivor Benefit Plan, less VA disability pay, and less debts payable to the Unites States. 10 U.S.C. §§ 1447, et seq. The maximum the military can pay is 50 percent of the disposable income. Franz v. Franz, 831 P.2d 917 (Colo. App. 1992). Additionally, because military pay is considered property and not maintenance, if a former spouse of a military servicemember receives any portion of the military retired pay, it will be paid to him or her until the member’s death, even if the former spouse remarries.

A common misconception about the USFSPA is that it requires the parties to have been married for 10 years or more to apply. In fact the state court still has jurisdiction to divide military pay even if the parties have been married for less than 10 years. However, in order for a party to receive DFAS direct payments, the parties must have been married for 10 years during the servicemember’s active duty.

RETIREMENT BENEFITS FOR ACTIVE DUTY SERVICEMEMBERS

If a person is still on active duty, the court will now use what is being called the “Freeze Time Formula” to divide the servicemember’s pension. That formula is as follows:

Marital Asset = disposable retired pay x (marital duty months/total duty months) x (pay at divorce/pay at retirement)

Spousal Benefit – ½ x (marital asset)

For example, a couple divorces while the member is a Captain in the Army with four years of service. All four years were during the course of the marriage. At that time, the member’s annual basic pay is $64,778. This same military member rises to the rank of Colonel and retires at twenty years of service with a basic pay of $120,654. This same military member rises to the rank of Colonel and retires at twenty years of service with a basic pay of $120,654. For simplicity’s sake, we will assume the retired base pay is $120,654.00, or $10,054.50 per month. At 20 years with a 2.5 percent multiplier, the Colonel will receive 50 percent of his average base pay per month or a disposable retired pay of $5,027.25.

Using the Freeze Time Rule, the spousal benefit is calculated as follows:

Marital Asset = $5,027.25 x (48 marital duty months/240 total duty months) x ($5,398.16 Captain Pay/$10,054.50 Colonel Pay)

Marital Asset = $542.94

Spousal Benefit = $271.47

Once the court has apportioned the marital share of the military retirement, the court will follow one of three methods to divide the property:

  1. Reserve Jurisdiction.
  2. Deferred Distribution.
  3. Net Present Value.

The most commonly used method is the Reserve Jurisdiction method. Under that method, the court waits and reserves jurisdiction to divide the servicemember’s retirement until it is vested and matured. Under the Deferred Distribution method, the court calculates each party’s portion of the retirement, however, the non-servicemember does not receive their portion until the retirement is matured and vested. Finally, the court can immediately distribute the non-servicemember’s portion under the Net Present Value method. This method is extremely complicated and uses actuarial tables and risk calculations to come up with a present value of each party’s portion. Courts typically only use the Net Present Value method when the retirement is not yet vested. In re the Marriage of Riley-Cunningham, 7 p.3d 992 (Colo. App. 1999).

PARENTING TIME

In general, each parent is entitled to reasonable parenting time with the child unless the court finds parenting time would endanger the physical health or significantly impair the emotional development of the child. C.R.S. §§ 14-10-124(1) and (1.5)(a). In determining an appropriate parenting time schedule or in reviewing a schedule established by agreement of the parties, the court must consider the factors listed in C.R.S. § 14-10-124(1.5)(a). Some of those factors are:

The pattern of past involvement of each parent.

  • The wishes of the child if the child is sufficiently mature to express such wishes.
  • The ability of each parent to encourage a loving relationship between the minor child and the other parent.

Military cases, however, are unique, and divorce attorneys who represent clients in the military need to know the additional statutes and case law that govern those types of cases. For example, if one of the parties becomes deployed, The Uniform Deployed Parents Custody and

Visitation Act (UDPCVA) is implicated. The UDPCVA is codified in Colorado State Law as C.R.S. §§ 14-13.7-101 – 14-13.7-504. That act contains many important rules for key issues to members of the military including: cases involving deployment, military custodians, delegated visitation rights, return from military absence, electronic testimony and expedited hearings.

Regarding custody during deployment, an important concept to military custody cases and to the UDPCVA is the concept of anticipating “military absences.” Military absences may include deployment, TDY, or a remote tour of duty, and such absences require military parents to prepare a temporary plan for custody and visitation arrangements during their absence. After the absence is over, the temporary plan ends and the parties return to the parenting plan that was in place before the military absence.

Additionally, being deployed does not necessarily mean that your new spouse cannot have parenting time while you are gone. In In re the Marriage of De Palma, the Court found that a parent has presumptive right to control children’s upbringing, including making decisions on who cares for children. In re the Marriage of De Palma, 176 P.3d 829 (Colo. App. 2007). While the Court ultimately determines the best interests of the child, fit parents are presumed to make decisions in the best interests of their children. Thus, it is not automatic that just because a spouse is deployed, the child will spend that time exclusively with the other spouse.

DECISION-MAKING

In general, the court will allocate decision-making responsibility using the same factors used to determine whether parenting time is in the best interest of the child, including the factors of endangerment. C.R.S. 14-10-124(1.5)(b)(I)-(III). In addition, the court will also look at the parties’ ability to:

  • Cooperate and make joint decisions.
  • Provide a positive and nourishing relationship.
  • Promote contact between the parties.

In military cases regarding decision-making, the UDPCVA is once again implicated. That statute defines decision-making as “the power to make major decisions regarding a child, including decisions regarding the child’s education, religious training, health care, extracurricular activities, and travel. The term does not include the power to make decisions that necessarily accompany a grant of caretaking authority.” §102(6). Thus, the parties can include decision-making authority as part of their interim agreement pursuant to the UDPCVA. However, if the parties cannot agree, the case law supports the position that a step-parent or other non-parent should not be given decision-making authority. In the De Palma case, mentioned above, the appellate Court found that because parents share exclusive rights to decision-making, the deployed servicemember’s new wife could not have decision-making authority.

CONCLUSION

Military divorces are often complex, involving both federal and state statutes. It is imperative that attorneys handling military cases be familiar with the statutes and case law governing such cases in order to properly protect the rights of their clients.