In recognition of the tremendous sacrifices of the United States Military and their families, active and retired military members and their dependents shall receive a special discount from The Law Offices of Gordon N. Shayne. A Military client is defined as an individual on active duty, present reserve status or retired, including a dependent spouse.
I. Military Divorces
Each jurisdiction in the United States has specific statutes enacted by the various legislatures which address a state’s divorce laws. The Code of Military Justice does not have any provisions that govern this area of the law. Therefore, it is critical to remember that only the individual states, in the United States, have laws which describe the procedure and requirements to obtain either a divorce or a legal separation.
Colorado’s laws which describe the requirements to obtain a divorce are set forth under Title 14 of the Colorado Revised Statutes, entitled under the heading of the “Uniform Dissolution of Marriage Act.”
The purpose of the Act, as defined under CRS Section 14-10-102 was to “promote the amicable settlement of disputes” in divorce cases and “to mitigate the harm to spouses and their children caused by the process of a legal dissolution of marriage”.
A Military Service Member who wishes to obtain a divorce in Colorado must establish that Colorado is that Service Member’s state of residency (see your LES), or that the spouse has resided in the State of Colorado for at least 90 days preceding the filing of the action.
It is always suggested that an experienced Family Law Attorney who has a thorough understanding of the Colorado revised statutes, be consulted by any Military Service Member with respect to the requirements needed to file a divorce case in Colorado.
I have represented hundreds of Military Clients, some of whom have spoken to JAG before seeing me, about their family law case. Since there does not exist any set of Military laws or regulations associated with Family Law, only a civilian Court has the potential ability to grant a Service Member’s request that a marriage be dissolved.
Another benefit to hiring a Colorado lawyer is the ability of the lawyer to file a Motion requesting that the Service Member be permitted to appear by telephone for Court Hearings. I have done so for Soldiers, Sailors, Marines and Airmen stationed and serving all over the globe. A Court Order granted by the presiding Magistrate or Judge is needed before a Service Member is permitted to appear by telephone, provided “reasonable notice” has been given to the Opposing Party.
Click here to read our article “Deployment and Divorce”
II. Military Retirement
Military retirement benefits are most commonly determined after a Service Member has reached more than 20 years of service. The Court shall have the power to divide a Service Member’s disposable military retirement pay, in conjunction with a dissolution of marriage proceeding. This means that the Judge in a divorce case can enter Orders which will define what portion of a retirement will be divided and awarded to the other spouse. The process of dividing the military retirement is commonly referred to as the “time rule coverture formula”. The formula shall take into account the overlapping number of moths of the parties’ marriage, to the overlapping number of months of military service. A specific Court Order that details the divison of the retirement will be needed.
For Service Members who have not retired from active duty, but are in the process of a divorce, the parties typically agree to have the Colorado Court “reserve juridsdiction” on this issue until such time as the Military Member actually retires. This is accomplished by application of he formula described above.
For spouses who will receive a portion of their fomer spouse’s military retirement, as long as the overlapping number of months of marriage to Military Service Member exceeds 10 years, the former will be able to collect his/her share by direct payment from the Defense Finance Office. There are proper procedures and orders needed, to make sure that these benefits are received in a timely manner. Survivor benefits and/or life insurance should be taken into consideration whenever a military retirement is an issue in a divorce matter.
III. Deployments & Soldiers Sailors Civil Relief Act
When an active duty or reservist receives orders to be deployed and there exists a pending divorce or possibly other type of family law matter, that Service Member may invoke the Soldiers Sailors Civil Relief Act (“SSCRA”). The act was enacted in World War II to prevent Service Members from being subjected to possible prejudicial impact of a civilian Court’s Orders while the Service Member was out of the country serving abroad. The “act” must be invoked by the Service Member in an effort to “stay” the Court proceedings until such time as the Service Member returns. Often times, despite a Military Member being stationed in an overseas combat theater, I have been contacted and hired to initiate a divorce, child custody or other type of cases. Participation by a Service Member can occur, notwithstanding the overseas commitment.
A recent development in Colorado law occurred when the Court of Appeals ruled on the DePalma case. In that case, a Service Member was about to be deployed and wanted his present spouse to exercise parenting time that he could not otherwise have with his children. The Court recognized the importance of maintaining parenting time contacts with the step-parent during the Service Member’s overseas deployment. Particular attention to the fact of each case will determine if the DePalma ruling can be applied to other cases.
IV. Military Law Marriage
Each state in the United States has distinct laws that govern the requirements for a lawful marriage. A valid marriage is one that the law recognizes as satisfying the requirements of that particular jurisdiction. Military members are subject to having the Defense Finance and Accounting Service (DFAS) determine the validity of a marriage or relationship. It is at the discretion of the DFAS to make a determination as to the validity of any service member’s marriage.
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