All divorces come with legal complexities, but if you’re facing a military divorce, there are likely to be additional layers of challenge involved. Protecting your parental and financial rights throughout the military divorce process is key.
This makes it in your best interest to work closely with a dedicated Round Rock divorce attorney – who has considerable experience successfully handling difficult military cases – from the start.
How do I serve my military spouse with divorce papers?
To divorce a spouse who is a member of the military, there is a service of process requirement. This means that, if your spouse is an active duty service member, they will need to be served with the divorce papers in person, which – if they are deployed overseas – can extend the divorce process right out of the gate.
What are the residency requirements?
The basic residency requirements for a divorce in Texas include that at least one of the spouses must have been a legal resident of the state for at least the six months prior to filing. Further, at least one of you must have lived in the county you file in for at least the 90 days prior.
State law, however, also allows those who are stationed in Texas or who are on deployment from Texas to file for divorce in the state. With all this going on, jurisdictional complications that can drag out the legal process are not uncommon.
What if my spouse is active duty?
The Servicemembers Civil Relief Act (SCRA) ensures that active duty servicemembers are entitled to certain protections, including in relation to divorce. If a servicemember’s duties interfere with their ability to adequately participate in or respond to a civil court action, such as divorce, they can request a postponement of the legal proceeding or contest the divorce.
This means that if your spouse is active duty or is preparing for deployment, your divorce will likely be delayed until their return.
Will divorce affect my right to my ex’s military benefits?
The Uniformed Services Former Spouses’ Protection Act (USFSPA) addresses the rights of military spouses in relation to military benefits – including in the event of divorce. One of the most important aspects of the USFSPA is that it classifies the servicemember’s military retirement pension and a range of other benefits as marital property rather than as income.
This means these benefits are addressed in divorce in terms of property division, which affords you – as the spouse of a servicemember – more considerable financial rights.
The 20/20/20 Rule
When certain criteria are met, the ex-spouse of a servicemember is entitled to continue receiving military benefits. Under the so-called 20/20/20 rule, the requirements include all the following:
The marriage lasted at least 20 years.
The servicemember served at least 20 years in the military.
The marriage and the servicemember’s service overlapped for at least 20 years.
For example, if you married in 2000, your spouse went into the service in 2001, and you divorced in 2022, all three of these requirements are met. Under these conditions, you would be allowed to maintain your military identification card and to continue receiving both medical and commissary benefits.
The 10/10/10 Rule
A servicemember’s retirement pay can also be classified as a marital asset, and as such, must be divided fairly between the spouses in the event of a divorce. For this to happen, however, what is known as the 10/10 /10 rule must apply, which includes the following requirements:
The marriage lasted at least 10 years.
The service member served at least 10 years in the military.
The marriage and the spouse’s military service overlapped for at least 10 years.
If each of these applies in your situation, you may be entitled to a specific portion of your ex’s monthly disposable retirement pay, which refers to the total monthly amount minus allowed deductions.
Considering Property Division in Texas
It’s important to consider military benefits in the context of property division in Texas. Those assets that either spouse – or both spouses together – acquire over the course of their marriage are considered marital assets. The few exceptions to this rule include the following:
A gift or inheritance that either spouse receives in their name alone
The physical and emotional pain and suffering component of a personal injury claim brought by either spouse during the marriage
In the event of divorce, marital assets must be divided fairly – or in a manner that is considered just and right – between both spouses.
When the assets in question are military benefits, the same is true, but they are subject to additional rules and regulations, including those defined by the 20/20/20 and the 10/10/10 rules. Other factors that apply to property division in all Texas divorces include all the following:
The length of the marriage
Each spouse’s separate estate
Each spouse’s age and overall mental and physical health
Each spouse’s contributions to the marriage, including in relation to homemaking and caring for the children
Whether either spouse’s fault contributed to the dissolution of the marriage, which can potentially play a role even in no-fault divorces
Whether either spouse committed fraud on the community estate, such as by spending down, hiding, or giving away marital assets
Separate assets refer to those properties that were owned by either spouse prior to marriage and that were kept separate throughout the marriage. Any commingling of marital and separate assets can erode the division between the two. Further, when a separate asset increases in value during the marriage, that increase is generally treated as a marital asset.
In other words, the division of marital property in divorce is complex, and in a military divorce, it can be more so.
How does deployment affect child custody?
Deployment can obviously make it very difficult – if not impossible – for the parent who is a servicemember to spend time with their children.
Texas courts put a premium on the best interests of the involved children in every child custody case, and this includes maximizing the amount of time they’re able to spend with each parent. The negative consequences of deployment in this context, however, can’t be ignored.
If You Are the Primary Custodial Parent
If you are the primary custodial parent – which means that you have the children for the majority of their overnights while your ex has a visitation schedule, and are deployed, you’ll need to assign this primary parenting role to someone else for the duration of your deployment.
Only if there is a significant reason for not choosing your children’s other parent for this role will the court look elsewhere. Generally, the parent with a visitation schedule steps into the primary custodial role when their children’s custodial parent is deployed. Once deployment ends, the prior custodial terms are reinstated.
Visitation Rights during Deployment
Texas law allows a military parent – who is either the noncustodial parent to begin with or who is in the role temporarily due to deployment – the right to designate temporary visitation rights on their behalf during deployment. This often means one of the following:
The children’s grandparents on the deployed parent’s side
The deployed parent’s current spouse – or the children’s stepparent
Another relative of the deployed parent
Temporary visitation determinations must serve the children’s best interests, but preference generally isn’t assigned to the children’s primary custodial parent – unless there isn’t an option that better serves the deployed parent’s connection to the children.
Making Up for Lost Time
Texas courts recognize that deployment can eat up a considerable amount of a parent’s visitation with their children. When it’s considered to be in the children’s best interests, a parent whose deployment has ended can be afforded additional visitation that is intended to help make up for the loss they experienced during deployment.
Building in Flexibility
Ultimately, Texas courts recognize that military deployments aren’t a level playing field when it comes to child custody rights. In response, they build in flexibility that is designed to support the children’s best interests and the deployed parent’s rights, which typically go hand in hand.
Best-Interest Factors
Every child custody case in Texas – whether military or not – is determined in response to the children’s best interests, and the best interest factors that help guide these decisions include all the following:
The children’s developmental stages
The children’s ages and needs, including any special needs
Each child’s overall mental and physical health
The preferences of those children who have the maturity to voice them
The level of involvement each parent has had with raising the children to date and the depth of the relationship between each parent and the children
Each spouse’s commitment to effective co-parenting
Each spouse’s commitment to supporting their children’s close and ongoing relationship with their other parent
How well the status quo – or the children’s current living situation in relation to home, school, and community – supports their best interests
Each parent’s overall mental and physical health
Whether there are any concerns related to domestic violence, child neglect, or child abuse
What is the Survivor Benefit Plan?
Sponsored and subsidized by the Department of Defense, the Survivor Benefit Plan (SBP) affords up to 55 percent of a servicemember’s retirement pay to an eligible beneficiary upon servicemember’s death. This coverage is automatic when the servicemember is active duty, and servicemembers can pay for continued coverage upon retirement from the armed forces.
The Associated Benefits
The benefits of the SBP are considerable and include a lifetime annuity that is based on the ex’s military retirement pay. Because the premiums paid for SBP upon your former spouse’s retirement come out of their gross retirement pay, the benefits paid out aren’t taxed as income, which makes them that much more valuable.
Receiving Coverage in the Divorce Decree
Upon divorce, SBP coverage for the spouse who isn’t in the military generally ends unless the court includes it in the divorce order – or the divorcing spouses negotiate terms between themselves.
When this happens, Texas courts can require the spouse who is a servicemember to make the SBP payments – or to maintain the coverage while their ex makes the payments – upon retirement.
If you are the beneficiary spouse, you’ll need to request benefits through the military when the time comes – according to the requirements imposed.
It’s important to note, however, that the actual payments for the coverage must come directly from your ex’s retirement pay. This means that – if you’re covering the cost – you’ll need to proceed in one of the following ways:
Having your spouse’s retirement pay that you receive reduced by the amount necessary to cover the cost of the Survivor Benefit Plan
Reimbursing your ex for the SBP premiums yourself
Generally, the beneficiary of an SBP is the veteran’s surviving spouse. When the veteran is divorced at the time of their death, coverage for the ex-spouse must have been elected or court-ordered at the time of the divorce.
Do I need a divorce attorney?
Anyone who is facing a divorce is advised to have professional legal counsel on their side, but when it’s a military divorce, it’s that much more important to have a savvy divorce attorney with considerable experience handling these challenging cases backing you up.
Not only will your trusted attorney help protect your financial and parental rights throughout the process, but will also help keep your case moving effectively and efficiently forward.
Turn to an Experienced Round Rock Divorce Attorney for the Help You Need Today
If you are facing a military divorce, Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Round Rock, Texas – is a practiced divorce attorney who appreciates the complexities of your case and will fiercely advocate for a favorable resolution that protects your rights.
Your case is important to your future, so please don’t delay contacting or calling us at 254-781-4222 to schedule your free consultation and learn more about what we can do to help you today.