If you are an active duty, reserve duty, or retired servicemember or the spouse of one in Colorado and you are considering or facing divorce, you likely have a lot of questions. Divorce is one of the biggest life changes you can face. Divorce on its own is complicated, but when one of the spouses is in or retired from the military, there are additional concerns and complications.
Whether you are stationed at Buckley Air Force Base in Aurora, the Air Force Academy in Colorado Springs, Fort Carson Army Base in El Paso, or any other Colorado base, or are a spouse of a local, deployed, or retired servicemember or officer, Burnham Law is ready to help you through all aspects of your military divorce.
Deciding to Divorce or Separate
Deciding to get a divorce is a difficult one. Many couples try marriage therapy before finally deciding to end their marriage, and doing so can give you the peace of mind that you have tried everything. If you decide your marriage is over despite your best efforts, you can consider a divorce or a legal separation. These two options are similar, but there are a few key differences, particularly for military families.
A divorce legally ends your marriage and determines child custody, child and spousal support, and asset and debt division. The divorce impacts the civilian spouse’s access to military health care, housing, and privileges.
A legal separation is accomplished through a separation agreement filed with the court or a judgment of separation determined by the court. Legal separation determines child custody, child and spousal support, and asset and debt division. However, because the couple remains legally married, the civilian spouse continues to receive access to military health care, housing, and benefits. Since the couple continues to be legally married, military rules about adultery do continue to apply. Therefore, separation can be a consideration under the UCMJ adultery rules, but does not eliminate the possibility of a determination about this.
Many people are interested in annulment as a way to end a marriage. In Colorado, this is a Declaration of Invalidity. This is only available if the marriage was not legal at the time it was entered into. It is a determination that the marriage never legally existed.
Reasons for annulment include:
- One or both of the parties could not legally consent to the marriage because of mental incapacity or intoxication
- One party (or both) was already legally married to other people at the time of the marriage
- One party (or both) was underage and could not consent and did not obtain parental or judicial consent
- One spouse cannot physically consummate the marriage, and the other spouse was unaware of this at the time of the marriage
- The marriage was agreed to due to fraud
- The marriage was agreed to under duress or coercion
- The marriage was entered into as a joke or a dare
A religious annulment is a completely different process and is handled by your religious institution. You can obtain a legal or a religious annulment, or you can obtain both.
Annulment does not affect the legitimacy of children born during the marriage. Any child born during the marriage is legitimate. The annulment includes determination of child custody and support. Unlike most states, Colorado does allow for the distribution of marital assets and debts and possible awards of spousal support as part of an annulment.
Choosing Your Process
There are several paths you can follow to get a divorce in Colorado.
- Mediation. When you mediate your divorce, you and your spouse work with a neutral third-party mediator (often an attorney) who helps you find solutions for all the issues in your divorce. The solutions are tailor-made for your family. You then create an agreement that becomes your judgment of divorce.
- Collaborative Divorce. In this process, you and your spouse each work with attorneys who agree not to take your case to trial and instead consent to reach a mutually agreeable settlement. You will not negotiate directly with your spouse in this attorney-guided process, but you must reach an agreement you are both comfortable with.
- Special Masters. When you work with a Special Master, sometimes called an arbitrator or private judge, you agree that the Special Master has the authority to decide the outcome of your divorce. The highly qualified Special Master (often a retired judge) will hear evidence and testimony and apply the law to your case. This type of solution is faster and more private than a traditional divorce.
- Litigated Divorce. This is a traditional courtroom divorce where you have a trial in front of a judge who then decides the outcome of your case.
All of these options are available as methods of resolution for your divorce. Note, however, that some divorce courts in Colorado require an attempt at mediation before you litigate your divorce. Your attorney can help you decide which method is best for your case.
Choosing an Attorney
Choosing the attorney you will work with for your divorce is one of the most important decisions you’ll ever make. You want an attorney who understands your primary concerns and has experience in the types of issues involved in your case. For example, suppose custody is your most pressing concern. In that case, it is important to seek out an attorney with experience and success in custody cases and awareness of the particular concerns involved in your case.
For military families, it is crucial that you work with an attorney who understands your profession, the pressures of your life, and the detailed laws and requirements that apply exclusively to military officers and servicemembers, especially concerning retired pay and SBP.
It is a good idea to interview at least two or three attorneys and then choose to work with the person you feel has the best understanding of your situation and with whom you feel a connection. It is important to keep in mind that although you call all the shots in your divorce, your attorney is the one with the experience, knowledge, and instincts that will bring success to your case. You should work with someone you feel comfortable trusting and relying upon.
To file for divorce in Colorado, one spouse must meet the state’s residency requirements. In addition, one spouse must be a resident for a minimum of 90 days prior to filing for divorce in the state.
For military members, residency is determined by what is listed on the Leave and Earnings Statement (LES) as the legal residency. They must have a Colorado driver’s license, voter registration, or proof of ownership of real property in the state. Being stationed at a base in Colorado is not enough to qualify as a resident.
The civilian spouse qualifies for residency by having a Colorado driver’s license (or other proof such as voter registration or property ownership) and being in the state for at least 90 days prior to filing.
Service of Divorce Papers
Colorado requires that divorce papers be personally served to the defendant in the case. If your spouse is based in the United States, service is possible with the help of your attorney. Service can be accomplished through their commanding officer at whatever base where they are located. If a service person is a legal resident of Colorado but is stationed in another state, they can still be served and required to appear in the divorce.
The Military Spouses Residency Relief Act applies this same standard to military spouses. In general, if a servicemember is deployed to another country, you will not be able to serve them with divorce papers. There is a process in place through the Hague Convention for out-of-country service, but it is difficult to execute. The military service person can consent to or waive service; however, if you both wish to get a divorce, this can move things along.
Colorado has a 91-day waiting period that must elapse between the date of the divorce filing and the date of the final judgment. This is meant to provide a cooling-off period, so people do not rush into a divorce. As soon as a divorce is filed, Colorado issues automatic temporary injunctions requiring the spouses to act civilly with each other, move the children, or sell any marital assets. In most instances, a divorce will take longer than 91 days to complete in Colorado unless the couple is in total agreement and has all of the paperwork completed in advance.
The first status conference in the case is generally not scheduled until 40 days after the filing. Most cases take several months to complete. The process can be complicated with a variety of motions for temporary relief, extended time for discovery, and then trial preparation. A trial itself can be spread out over several days or weeks and heard in small segments as it fits into the court’s calendar. The divorce is not final until the court issues a divorce decree.
The Servicemembers Civil Relief Act (SCRA) applies to active duty members and allows them to stay (delay) any divorce proceedings for at least 90 days if they:
- Apply in writing for a stay explaining why they can’t appear
- Are in the service or within 90 days after returning from deployment
- Have actual notice of the case
- Include confirmation from their commander that leave is not an option
The servicemember can apply for additional stays after the initial 90-day stay expires. These stays can mean that it can take a long time to complete a divorce if your spouse is on active duty. However, judges are aware that servicemembers do receive leave and also can appear via telephone, so the case is not delayed indefinitely. If a court enters a default judgment (a judgment based on a failure to appear), the servicemember can have the default judgment set aside based on the SCRA if they were on active duty at the time the judgment was entered. An attorney experienced in military divorce can ensure that your case moves forward quickly.
Grounds for Divorce
Colorado is a no-fault divorce state. The only grounds for divorce available is no-fault. No-fault divorce means that no other reasons are allowed, and there is no proof necessary that the marriage is broken. Neither spouse has to prove adultery, abandonment, or any other reason for the divorce. If one spouse decides to seek a divorce, the state will grant a divorce.
Intimate partner abuse can include physical, mental, sexual, emotional, and financial abuse. Domestic abuse occurs against someone with whom the aggressor lives. Colorado defines domestic violence as “an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship.” The law also defines it as any other crime against a person or property (including an animal) used as a method of coercion, control, revenge, intimidation, or punishment.
If you are a victim of domestic violence, the first concern is getting yourself to safety. Violence Free Colorado lists shelters where you can get help. If you are in immediate danger, you should call 911. Your attorney can help you get a protection order so that your spouse cannot harm, threaten, or approach you in the future.
Custody and Visitation
The custody of children is one of the most emotional issues involved in divorce. Colorado determines custody and visitation based on what is in the best interests of the children. The court will determine legal and physical custody.
- Legal custody refers to the parents’ decision-making authority about important issues in the child’s life, such as education, medical care, activities, and religion. Legal custody can be shared/joint or sole (assigned to one parent).
- Physical custody refers to how the parents share time with the child and determines which residence they will spend most of their time. Physical custody can be joint or shared, with parents sharing time according to a parenting plan, or one parent can be granted sole physical custody.
Factors that Colorado courts consider in making custody determinations include:
- Child abuse, child neglect, or domestic violence by either parent
- Each parent’s ability and willingness to encourage the child to have a relationship with the other parent
- How far apart the parents’ residences are from each other as well as from places such as the child’s school
- The child’s adjustment to their community, school, and home
- The child’s wishes about the schedule if they are old enough to offer a reasonable opinion
- The custody determination and parenting schedule that each parent is requesting
- The mental and physical health of the parents and children
- The parents’ ability to put the child’s needs first
- The relationship the child has with each parent and any siblings
In addition, military deployment is a factor in custody determinations. Because of this, it is common for the non-military spouse to be awarded residential custody and the majority of time with the child, simply because of the deployed parent’s schedule. In dual military cases, where both spouses are active duty members, the court may require the use of a Child and Family Investigator or Parental Responsibility Evaluator to determine what would be in the child’s best interest. An attorney experienced in military divorce can guide you through this process.
Both parents are legally required to financially provide for their children after a divorce in Colorado. Child support is intended to provide for the children’s living expenses, and costs such as health care, school expenses, and activities. Child support is determined based on a formula (called the Child Support Guidelines) that considers each parent’s income and the number of children.
Military pay and pensions are considered income for the purposes of child support calculations. A Leave and Earnings Statement (LES) is used to calculate income for military servicemembers. Base pay, Basic Allowance for Subsistence (BAS), and Basic Allowance for Housing (BAH) are included in the child support calculation.
VA disability payments are also considered income for the purposes of child support. Child support stays in place until the child reaches age 18 (or 19 if they are still in high school) or ends earlier if the youngest child becomes emancipated before that age.
When you divorce, maintenance (also called spousal support or alimony) can be included in the divorce. This refers to payments from the higher-earning spouse to a lower-earning spouse who cannot support themselves and cannot immediately become self-supporting. For example, the lower-earning spouse might be providing child care for the couple’s children, have been out of the workforce for a period of time, or require education or training to re-enter the workforce.
Frequent moves as a military spouse often make it challenging to establish and build a career, which is a consideration. In considering a maintenance award, the court takes into account the following factors:
- The age, health, and financial situation of the low earning spouse
- The length of the marriage
- The low earning spouse’s earning potential based on their education, training, and experience, as well as available opportunities
- The paying spouse’s financial position
- The standard of living the couple shared during the marriage
Colorado courts take a spouse’s earning capacity very seriously. In many military families, one spouse has remained home with the children or has put their own career on the back burner to support an upwardly mobile spouse in the military. However, suppose a spouse is reluctant to support themselves or seek work that meets their qualifications. In that case, a vocational evaluator can be involved in assessing the spouse’s actual career and earning opportunities and abilities. If a spouse is intentionally under-employed, the court can impute income to them that they should be earning and adjust a maintenance award accordingly.
Military Support Requirements
It’s important to note that all military branches have rules that require servicemembers to financially provide for their spouses and children, even if they are separated. However, this is only a temporary fix. If you need ongoing child or spousal support, you need to work with an attorney to get an order in place and secure it as part of your divorce judgment.
Division of Assets and Debts
When a marriage is dissolved in Colorado, the court must divide the parties’ assets and debts. Assets and debts are categorized as separate property/debts and marital property/debts.
Separate property includes:
- Assets and debts the spouses owned separately before they married or after a legal separation
- Assets they received as a gift or inheritance during the marriage
- Assets or debts that a prenuptial or postnuptial agreement designate as separate assets or debts
Marital property includes all other assets or debts that were acquired during the marriage, regardless of which spouse’s name is actually on the account or title. So, if one spouse buys a car during the marriage and the title is only in that spouse’s name, it is considered a marital asset because it was acquired during the marriage.
Marital assets and debts include items such as:
- Apartment lease
- Bank accounts
- Car loans
- Cars and vehicles
- Credit cards
- Household furnishings
- Investments and retirement accounts
- Mortgages and home equity loans
- Personal loans
- Privately owned guns
Once the court has identified marital assets and debts, they are valued and then divided through a method called equitable distribution. This means they are divided in a way that is fair, but not necessarily equal.
The court considers a variety of factors when distributing the assets and debts, including:
- How the spouses contributed to the marriage, including as a stay at home parent or homemaker
- The economic circumstances of the spouses after the divorce
- Increases or decreases to separate property values that happened during the marriage (such as an increase in value to a rental property both spouses renovated)
- Whether any separate property was used in the marriage (such as a home separately owned but lived in by the parties)
Whether a spouse is entitled to receive a portion of their military spouse’s retired pay depends on the requirements of 10 U.S.C. §1408 and Colorado law regarding marital property division. Regardless if a servicemember has sufficient qualifying service to receive retired pay at the time of the divorce or legal separation, the spouse may be awarded a portion of the retired pay based on the years of service or points accumulated during the marriage.
To receive direct pay from DFAS, the following conditions must all be met:
- The military spouse must complete 20 years of creditable service qualifying them for retired pay
- The marriage must have lasted at least 10 years
- The military spouse must have completed at least 10 years of creditable service during the marriage by the date of divorce or legal separation
- This is known as the 10/10 Rule
If all three of these requirements are met, the civilian spouse is entitled to direct pay from DFAS. Even if the 10/10 rule does not apply, a spouse is still entitled to a portion of the retired pay, but payment would come from the servicemember spouse, not DFAS. It is important to note that an award amount can be negotiated. In some cases, there may be other marital assets that can be used as an offset.
The division of retired pay can be a challenging topic. If you are the servicemember, you may feel that you served your country and earned the retired pay, and having to accept that your spouse can take up to half of it can be a difficult pill to swallow. If you are the civilian spouse, you supported your spouse throughout their career and may have no retirement of your own to rely on.
After a divorce, spouses of military servicemembers are entitled to continue to receive military benefits, including Tricare, as well as retaining access to base privileges (including an ID card, access to the commissary, and PX), if they meet what is called the 20/20/20 rule created by the Uniformed Services Former Spouse Act, which requires meeting each of these three prongs:
- The couple was married for a minimum of 20 years
- The servicemember has at least 20 years of service that is creditable for retired pay
- The couple was married at least 20 years during the 20 years of creditable service
If the couple meets the first two prongs but only meets 15 years of the last prong, the spouse is entitled to full military health benefits for one year after the divorce.
If you do not meet this test and are the spouse of a servicemember, you may be deeply concerned about losing your medical benefits. The DOD Continued Health Care Benefit Program allows you to pay for your continued health care benefits for 36 months after the divorce as long as you enroll within 60 days of losing your benefits.
Survivor Benefit Plan (SBP)
The Survivor Benefit Plan (SBP) provides ongoing retirement income for spouses after the death of a servicemember. Since pension payments end at death, this is designed to provide ongoing benefits for families.
The SBP provides a monthly payment of the designated base amount. SBP is an election that is available to the servicemember, and the divorce judgment can require a deemed election. The SBP benefit is available if:
- The couple was married at the time the servicemember obtained eligibility for retirement pay
- They have been married for at least one year at the time of the servicemember’s death
Children are also eligible beneficiaries if they are under age 18, under 22 and in school, or disabled and unable to support themselves.
There is a monthly premium for the SBP benefit, and the cost can be allocated between the parties.
The Post-9/11 GI Bill provides an education benefit to servicemembers for up to 36 months of educational benefits. This is available to servicemembers who have served at least 90 days of active duty since 9/11. These benefits can be transferred to a spouse or child if the servicemember has six years or more of active duty and agrees to serve another four years.
These benefits are not revoked upon divorce, but once the election is made and the servicemember retires, the election cannot be changed, so this is a benefit that is in play in the divorce for assignment to the spouse or children.
Divorce is one of the hardest things you will ever deal with in your life. Military divorce includes a variety of specialized issues and concerns. To protect your interests and get through this challenging time in your life, you need an attorney who will fight for your rights and ensure that you get what you are entitled to. Burnham Law is experienced in military divorce and prepared to stand up for you.