Most of the blog posts you will find here on the website for the Law Office of Bryan Fagan center around civilian divorces. A civilian divorce usually features two people and maybe a child or two. The individuals will work for an employer in the private sector or may work for a public entity or government. Retirement division, community property division as a whole, and even the division of a child's time between parents are sure to be some of the main topics that are debated within the divorce case. Since most people are civilian rather than military members it would follow that the vast majority of the perspectives and information that we share in this space are geared towards people who are not military servicemembers.
The Texas Family Code is still the source of the statutes and laws that govern military divorces. With that said, military divorces carry with them different exceptions and considerations that you need to be aware of in your preparation for a divorce. For instance, when it comes to filing for divorce from your military spouse the Servicemember’s Civil Relief Act (SCRA) protects your spouse from default judgments in a divorce. While deployed you cannot obtain a default judgment against your spouse if he or she fails to Answer your Original Petition for Divorce.
Your spouse can request that the court delay the start of the divorce until he or she is no longer on active duty. There is no time limit for which the case can be delayed. Different military members undertake varying lengths of military deployments and as a result, this can have varying impacts on the timeline of divorce back here in the United States. If you are a military servicemember's spouse who would like to file for divorce, then you need to be aware that if your spouse is overseas or otherwise deployed then this will almost certainly delay your divorce.
Once their active-duty status is over your spouse will have up to sixty days to respond to your Original Petition for Divorce. On a civilian divorce, the time to respond to a petition is approximately twenty days which is much shorter. The extended time to respond to a petition for divorce takes into consideration the need for your spouse to be able to readjust to no longer being on active duty such as getting themselves situated with moving, employment, and any other logistical issues that may arise.
Determining residency for divorce
You or your spouse can file for Texas so long as at least one of you qualifies as a resident of the state. When we talk about residency for divorce purposes you would need to be able to establish that at least one of you has been a resident of the state for at least the past six months and a resident of whatever county you plan to file in for at least the past 90 days. If you are a military family, then the spouse who is serving can qualify as a resident if he or she has been stationed in Texas and one county for six months and 90 days. Being married to a spouse who is in the military and stationed here also qualifies you as a resident of Texas. All this residency talk is necessary to establish jurisdiction over your case. Jurisdiction means that a court has the legal ability to issue orders and make rulings within your case.
How can you track down and serve your active-duty spouse with a divorce petition?
Once you have determined that a particular court in a particular county in Texas has jurisdiction over your case you can go ahead and file your Original Petition for Divorce. This is the pleading that lays out your case and explains who you are, who your spouse is, and who your children are. Whatever you are asking the court to do for you will be included in the petition. You will file the petition with the court and then wait for the court to prepare the documents for service upon your spouse.
Even if your spouse is on active duty, he or she has a right to be served personally with your Original Petition for Divorce. Many people think that their divorce case begins when the Original Petition for Divorce is filed. While this may be true on a technical level, the reality is that your case has not truly begun until your spouse is legally served with the petition. This can be a challenge even in civilian divorces. Sometimes a spouse for files for divorce will not know where their spouse is living or how to find him or her. This is a problem that exists in military divorces, as well.
Your spouse may be stationed in another part of Texas from where you live. More than likely he or she has been stationed in another state or even another country. You may have to perform some research on how to serve your spouse depending upon their branch of the military. Or, if you choose to hire an attorney then he or she can perform much of the legwork on this subject. The contested nature of your divorce is crucial for you to be able to manage currently if you want to be able to proceed without too much of a delay.
Attorneys who practice family law see spouses every day who have the best of intentions for filing a divorce but then get caught up in the details of a case. Military divorces have a high degree of difficulty just from the standpoint of needing to serve your spouse with notice of the divorce. Considering that he or she could be living halfway around the world this may be easier said than done. Do not underestimate this challenge. However, do not let the challenge overwhelm and consume you. There are tools and tips that you can utilize effectively to serve notice of the divorce upon your spouse.
Keep in mind that there are options when it comes to notifying your spouse of the divorce that you have filed. If you all agree on the important issues in your case then an uncontested divorce is a definite possibility for you to consider. An uncontested divorce, practically speaking, means that you and your spouse have probably discussed your case previously and are operating with an understanding that certain issues are going to be decided in certain ways in the divorce. In a way, you have been informally negotiating the case already and stand ready to be able to move forward with the case as well as with a settlement negotiation.
The key part to understanding an uncontested divorce is that if you believe that you and your spouse truly can move forward with this kind of case then you would not need to go through the process of serving your spouse with notice of your having filed for divorce. Rather, you would be able to file your divorce as normally done in divorces but could then decide that you would prefer to email or even mail to your spouse directly a waiver of service. A waiver of service allows your spouse to waive their right to be personally served with a divorce petition. This can mean that once your spouse signs and returns the waiver of service you can file this form and move on with your case. No need to try and locate him or her with a private process server or whatever is required in the military branch in which your spouse serves.
Can you get a divorce for a specific reason?
In filing for divorce, you do not need to list a specific reason why you are filing for divorce. This is known as a no-fault divorce. No-fault divorces are permitted in all fifty states. The main thrust of a no-fault divorce is that you are telling the court that you and your spouse can no longer get along with one another and that you must end your marriage as a result. The no-fault divorce was a recent invention of the various state courts around our country.
However, there are also specific fault grounds for divorce that you can specify in an original petition for divorce or your counterpetition for divorce. These are important for several reasons within your divorce given the history of your relationship with your spouse. We can spend some time going through each of those fault grounds here. Cruelty, adultery, confinement in a mental hospital, and abandonment are a few of the grounds. Specifically for confinement in a mental hospital, there must be no chance of your being able to recover from the mental impairment or problems to salvage the relationship.
How is property divided in a military divorce?
Property is divided in military divorces in much the same way as a civilian divorce. Community property laws in Texas mean that all property at the time of your divorce is presumed to be owned equally by you and your spouse. You can assert that some of the property is your separate property meaning that it was owned before your marriage or acquired during your marriage either by gift or inheritance. Both you and your spouse can own separate property that cannot be divided in the divorce. However, all other property is community property and can be divided in the divorce.
If you and your spouse have been married for ten years and those ten years have coincided with ten years of military service, then you would be eligible to have a portion of your spouse's military retirement benefits divided in the divorce. The Uniformed Services Former Spouses' Protection Act is a set of federal regulations that determine how retirement benefits for military members can be divided. Retirement plans in the military are not the same as a 401K or individual retirement account (IRA). If you do not understand the difference you should consult with one of the attorneys with the Law Office of Bryan Fagan and we can help make that distinction clear to you.
Custody and support of minor children
A parenting plan allows you and your spouse to create a custody and visitation schedule that works best for your children, whose best interests you are presumed to be looking out for. If your active-duty member-spouse is sent to live in another state or country, then you and your spouse need to plan for this and include language in your final decree of divorce on how to plan for substitute visitation moving forward. An “every other weekend” type of visitation with a parent who is serving in the military does not work well.
As for child support, there are guidelines outlined in the Texas Family Code that are usually followed in a typical divorce. If you are in a unique position such as if you have a child with a disability, then you should consider hiring an attorney to help you negotiate these subjects. The fact remains that an attorney is a short-term investment into your long-term future. With so much to lose in a divorce case, whether you or a military member or spouse this is a risk that you should not take lightly.
Just because your spouse is a military member does not mean that would be off the hook to pay spousal maintenance if that is ordered in a divorce. Unless you and your spouse agree to have contractual alimony paid in your divorce case, the only other way for you to receive post-divorce spousal support is through spousal maintenance. Spousal maintenance cannot be ordered at any time before a trial. This means that you can settle all the other areas of your case if you are able, but you must leave the issue of post-divorce spousal support to the judge.
The judge will decide whether you need to be paid spousal maintenance. Different factors will be looked at by the judge including your income and the chances of your being able to gain employment readily after the divorce comes to an end. If you are already working that income must be sufficient to meet your minimum, reasonable needs. Those minimum, reasonable needs are different for each of us but a household budget is a good place to start. If your income does not allow you to pay for the essentials of life like a place to live, clothes, food, etc. then spousal maintenance may be a necessity in your case. Keep in mind that both you and your spouse will need to submit a budget to the judge to help him or her to see if you have a need and if your spouse can pay the maintenance that you are requesting.
If you are not working, or are working part-time, then you will quickly need to figure out what your employment opportunities are once the divorce is done and over with. Many spouses do not start the process of looking for new work until late in the case. Not only will your ability to land a better-paying job going to be looked at by the judge but how soon you started your search will also be a relevant consideration, I have seen judges choose not to award spousal maintenance because a spouse was not diligent in their search for a better-paying job or career.
The length of your marriage is a leading indicator of how long spousal maintenance will be awarded in your case. Fault grounds for divorce, discussed earlier, as well as any role that family violence played in the divorce will also be important for a judge to consider. If you have spent time at home caring for your family while your spouse was able to go out and earn a great living, then out of equity a judge may decide to award spousal maintenance assuming that you meet all the other qualifications.
Benefits for a military spouse
If you and your spouse have been married for at least 20 years with at least 15 years overlapping with the military service, then you can only receive one year of TRICARE health insurance and access to military pharmacies. As mentioned earlier, the Uniformed Services Former Spouse Protection Act protects your rights to claim your spouse's military retirement benefits. You and your spouse must have been married for at least ten years for this Act to matter in your divorce, however. Your TRICARE health insurance is yours for life if you were married for at least twenty years, your spouse has been in the military for at least twenty years and twenty of those military service years also occurred while you were married.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.