While divorce is never easy, it can be much more complicated if one or both spouses are in the military. If you are facing a military divorce, protecting your parental and financial rights is key, and reaching out for the skilled legal guidance of an experienced Austin divorce lawyer for military spouses is an important first step.
The Terms of Your Military Divorce
Whether you’re seeking a civilian divorce or a military divorce, the terms that you’ll need to resolve don’t vary.
Child Custody Arrangements
In Texas, child custody is addressed in relation to legal custody (decision-making authority) and physical custody (the parenting time schedule). One parent may become the primary custodial parent, which means the children will spend the majority of their overnights with this parent, or the children can divide their time more equally between both parents.
Legal custody addresses all of the following big-picture parenting decisions:
Where your children attend school or daycare
The health care your children receive
Your children’s participation in extracurriculars and travel
Your children’s religious upbringing
Divorced parents can continue making these decisions together, or one parent may be awarded sole legal custody, which means having sole decision-making authority. However, it’s important to understand that the parent who is with the children is responsible for making any mundane, everyday parenting decisions that arise.
When a military divorce involves shared children, child custody concerns are a primary matter, which makes working closely with Texas military custody issues lawyers an excellent choice.
Child support addresses each parent’s financial responsibility to continue support for their children. Child support is calculated according to the state system, but the court has the discretion to deviate from this when circumstances call for it. Generally, the parent who earns more has the child support obligation – regardless of how evenly overnights with the children are divided.
The Division of Marital Property
Those assets that either spouse or both spouses come to own over the course of their marriage are identified as marital property. In the event of a divorce, this marital property must be distributed between the spouses equitably, which means fairly in relation to the specific situation at hand.
Assets that either spouse owned prior to marriage and that were not intermingled with marital assets during the marriage are identified as separate property, which continue to belong solely to the original owner.
Courts award alimony (called spousal maintenance in Texas) in certain situations. When divorce causes one spouse to experience a significant financial downturn while the other has the means to help, alimony may be the solution. Typically, alimony is set for a duration that allows the recipient to gain greater financial independence.
Filing for a Military Divorce in Texas
In order to file for divorce in Texas when one or both spouses are members of the military, the following conditions must apply:
At least one of you must have lived or been stationed in Texas for at least six months.
At least one of you must have been a resident in the Texas county in which you file for at least ninety days prior to filing.
It’s important to note that if you and your divorcing spouse share children and they’ve lived somewhere other than Texas for the past six months, a Texas court may not have jurisdiction over the matters of child custody and child support.
Determining where to file for divorce as a service member – or the spouse of a service member – can be predicated on any of the following information:
Where you and your spouse lived together
The location of your home of record
The location of your spouse’s home of record
The address where you currently reside
If choosing any of these locations meets the state requirements for Texas, you can file for divorce in the state.
If you share children with your divorcing spouse, the best policy is generally filing for divorce in the state with jurisdiction, meaning the state your children lived in for the previous six months. If your children lived in Texas during the last six months, a Texas court has the jurisdiction to address both your child custody arrangements and child support.
Serving Your Divorcing Spouse
To obtain a divorce in Texas, you must have your divorcing spouse served with the divorce papers in person. This requirement generally means service by a service professional. If your soon-to-be ex is on active duty, the situation can complicate matters considerably. If your divorce is uncontested and your divorcing spouse signs an affidavit waiving the need to be served, you can skip the personal service.
The bottom line is that military family law is complex, but seasoned divorce lawyers for military spouses are standing by to help.
Time Extensions for Servicemembers
The Servicemember Civil Relief Act (SCRA) affords servicemembers who are currently deployed with time extensions for their legal responses:
A servicemember who is served with divorce papers has an additional 90 days to respond.
A servicemember can request that the court delay the divorce hearing until their return from deployment.
These exceptions allow armed service members to protect their parental and financial rights when timely legal responses aren’t feasible. While a service member can request more than one delay, indefinitely postponing the divorce is not an option.
The Division of Marital Property Specific to Military Divorce
When one of the spouses who is party to a divorce is in the military, there are additional rules in place that help guide the division of marital property. For example, someone who was married to a military spouse for at least ten years of their active duty is generally entitled to half of the military spouse’s retired pay upon divorce.
The Uniformed Services Former Spouses’ Protection Act protects specific servicemember assets, including the following benefits:
Retirement and disability pay that is concurrent
VA disability compensation
Military disability retirement pay
Special compensation that is related to combat
If a divorcing couple has these assets involved in their case, they will not be eligible for division
The Military Spouse’s Thrift Savings Plan
Military spouses who are in active service often contribute to Thrift Savings Plans (TSPs), which correlate with civilian retirement accounts like 401(k)s and IRAs. While the value of your military spouse’s TSP prior to your marriage is his or her own separate property, the amount that it increases over the course of your marriage likely is not and should be fairly addressed in the division of your marital property.
When the spouse who is a member of the military retains their health benefits in the aftermath of a divorce, their ex typically isn’t eligible for coverage unless the military spouse put in at least 20 years of active duty during the marriage.
Another important point to consider is that only the state of the military member’s legal residence has the legal authority to divide their military pension in a divorce – unless the divorcing servicemember consents to another court making the division. In some divorces, this is an important financial concern, so it should always be taken seriously.
Child Custody Arrangements and Military Divorce
Every child custody determination made in the State of Texas is based on the involved children’s best interests. However, if one spouse is deployed, this divorce term becomes much more complicated. For example, the parenting plan that the exes share must consider the servicemember’s absences and must build in allowances that help to make up for the time they lose with their children as a result of active duty.
In these situations, the following kinds of special provisions are often allowed:
Employing a prearranged communication schedule – using video calls whenever possible – that allows the military parent and their children to keep in close touch with one another during deployment
Addressing the matter of travel time in relation to visitation for a military parent who is deployed outside of the state or country
Allowing the military parent to enjoy additional time with the kids when home between deployments
Allowing the children’s grandparents on the military parent’s side to have visitation with the children during periods of deployment
Make sure that you address any relevant custody issues. A seasoned Austin military divorce lawyer can help you craft a custody agreement that will protect your parental rights.
Child Support and Military Divorce
When one spouse is a military member, Texas courts consider additional factors when calculating child support:
The servicemember’s base pay
The servicemember’s housing allowance
The servicemember’s basic allowance for subsistence
Any special pay the servicemember earns
The degree to which these amounts may vary based on the servicemember’s number of deployments and base transfers – as well as any additional relevant factors
Child support paid by a servicemember is generally paid through wage garnishment, which is the same method used in civilian divorces. However, for servicemembers, this garnishment is managed through the Defense Finance and Accounting Service (DFAS) – except for members of the Coast Guard.
The Matter of Health Insurance through the Military
If you are the non-military spouse, you have two basic options when it comes to retaining military insurance coverage after divorce. Consult with a skilled military divorce lawyer for help considering your options.
For those eligible, TRICARE affords comprehensive coverage at no cost, but the qualifying requirements are exacting. Your marriage to your servicemember spouse must have included at least 20 years in which they were on active duty.
Many people refer to this as the 20/20/20 eligibility rule, which means if you had at least 20 years of marriage, and your spouse put in at least 20 years of service, and there is an overlap of at least 20 years, you’re eligible for TRICARE.
If you have healthcare coverage of your own but qualify for TRICARE, their coverage will be triggered when your own policy limits are exhausted. TRICARE coverage lasts a lifetime – unless you remarry and, thus, end your eligibility.
Conversion Health Coverage
For those who don’t qualify for TRICARE, there is a conversion health coverage option called the Continued Health Care Benefit Program (CHCBP). If you meet the following conditions, you can purchase CHCBP on an ongoing basis:
You had TRICARE coverage at some point during the 18 months that led up to your divorce.
You don’t have any additional health insurance coverage.
You’re entitled to a percentage of your ex’s military pension.
You are not remarried, and you haven’t turned 55 yet.
You make advance quarterly payments for CHCBP coverage
You meet every CHCBP application deadline, including enrolling within 60 days of losing health insurance coverage, which usually means enrolling within 60 days of your military divorce being finalized
The Servicemember’s Survivor Benefit Plan
Servicemembers can purchase survivor benefit plans (SBPs) upon retirement from the military, and the designated beneficiary is generally the servicemember’s spouse or former spouse. In your divorce, the court can require your servicemember spouse to purchase SBP coverage upon retirement as a mechanism for providing you with ongoing benefits in the event your ex’s death precedes your own.
Seek the Skilled Legal Guidance of an Experienced Austin Military Divorce Attorney
Military divorces add an additional layer of legal complications to the divorce process, which makes working with trusted Austin divorce lawyers for military spouses that much more important. Brett Pritchard at The Law Office of Brett H. Pritchard is a focused Austin military divorce attorney with decades of experience successfully protecting the parental and financial rights of clients like you. Our practiced legal team understands how stressful military divorce can be, and we’re committed to zealously advocating for terms that work well for you and your children. Your case is important, so please do not hesitate to contact us online or call us at (254) 781-4222 for more information today.