Life for the men and women who serve in our country’s military is both extremely rewarding but also full of challenges and hardships. As an attorney with the Law Office of Bryan Fagan, PLLC, I have had the opportunity and the honor to represent active duty members of the military as well as veterans in their child custody and divorce cases.
As citizens of the United States, we owe a debt of gratitude to these folks who sacrifice their personal comforts and peace of mind so that we as a nation may retain ours. That is something that is not lost on the divorce attorneys and staff at our office.
What is also sacrificed, I have learned through my representation of military personnel and their spouses, is that family life is probably the first area that begins to suffer when hardships start to occur.
When a divorce is on the horizon it is essential to have representation that understands the special circumstances that a military family lives under and how best to tailor their divorce to those circumstances. This blog post will discuss some of those issues for divorcing military members and their spouses.
How does a divorce differ for military families vs. civilian families?
To begin, active duty members of the United States Armed Forces are protected from litigation matters while deployed by the Servicemembers’ Civil Relief Act. As mentioned prior, active duty military personnel as well as activated reservists and deployed members of the National Guard are covered and protected from the initiation of continuation of any legal process while serving their country either domestically or abroad.
This means that new cases (divorce included) cannot be filed against you while you are an active duty member of the military (without your consent, that is) and cases that are proceeding currently cannot go into default judgment until more than sixty days has elapsed since your leaving active duty status.
Child support arrearages, for example, will continue to mount while you are serving the country but the court cases associated with the arrearage (if any) will be stayed as discussed in the prior paragraph.
Military residency is determined in a different fashion than civilian residency
Another area where a military divorce is different than a civilian divorce is in determining which state has jurisdiction in the divorce case itself. Military families are notorious for having to move all over the country and world in order to comply with the military member’s orders.
In some instances a father in the military will be staying on a military base for a little under a year prior to shipping off overseas. Meanwhile, his family will have never even been to the member’s temporary home base.
Determining the “domicile” of the soldier is key. Whether a divorce can be filed in the soldier’s home state or the state where his or her family resides is a determination for the court in which the divorce is filed as well as the court in which their spouse would prefer the divorce to occur, if any. For the most part in Texas, if a military member lists Texas as his or her residence it does not matter if she or she has not been back here in a decade or more- it is still possible to file for divorce here. It just has to be shown that the military member’s intent is to return to Texas after their active duty status ends.
Military Retirement- Just how much is at stake?
Other than children, perhaps the most commonly asked question that an attorney with the Law Office of Bryan Fagan, PLLC receives in a consultation on divorce is regarding retirement benefits. The law that controls military retirement benefits in the context of a divorce is the Uniformed Services Former Spouses’ Protection Act (FPSA).
This law does not state specific terms by which a military divorce must proceed as to military retirement benefits and allows each state to develop its own law in regard to distributing military benefits in the event of a divorce.
Texas is a community property state. In theory, this means that a civilian spouse is entitled to one half of any military member’s retirement benefits from the date the parties were married until their divorce.
This doesn’t always mean that a straight one half cut of the retirement benefits will go to each spouse. Frequently the valuation of the benefits is not taken into consideration fully and is therefore an issue when it comes to attempting to settle a military divorce. Having an attorney with some experience in deciphering the paperwork you or your spouse has received in regard to this benefits can be absolutely crucial.
Finally, military spouses do not need to be married for a certain length of time to have retirement benefits become available for a divorcing spouse, but in order to receive direct payments after a divorce a couple must have been married for at least ten years.
If a couple has been married for more than twenty years the nonmilitary spouse can continue to receive health insurance benefits. In addition, former spouses can still be designated as beneficiaries under the Survivor Benefit Plan if the military member dies.
Strong, effective advocates for military families- The Law Office of Bryan Fagan, PLLC
If you are an active duty member of the U.S. Armed Forces, or if you are married to a member of our military, having an experienced family law attorney at your side is essential if a divorce is going to become a reality for you and your family.
The Law Office of Bryan Fagan, PLLC represents clients across Southeast Texas and we are proud to county many military families among those clients. Our knowledge of the law is coupled with a down to earth understanding of people, families and the importance of their individual circumstances and challenges. Please contact our office today with any questions you may have. Consultations are free of charge and a licensed family law attorney is available to meet with you six days a week.
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Other Articles you may be interested in:
- Essential Information for Military Divorces in Texas
- Military Support Without a Court Order During a Divorce in Texas
- How to Divorce a Spouse in the Military
- Texas Divorce - Serving Military Personnel or their Spouse Worldwide
- Texas Statute Aids Military Personnel and Their Spouses in Filing for Divorce
- Roadmap of Basic Divorce Procedure in Texas
- How Can I Get My Spouse to Pay My Attorney's Fees in a Texas Divorce?
- How am I going to Pay for My Texas Divorce?
- Should I Hide Money from my Spouse to Get Ready for my Texas Divorce?
- 6 Mistakes that can Destroy Your Texas Divorce Case
- Do military couples marry faster than other couples?