San Antonio Military Divorce Lawyer
Divorce can be a messy and complicated process for anybody, but especially for people who are in the military or were in the military. In addition to all of the usual issues — such as property, custody and support — there are certain issues unique to military service that have to be addressed in a divorce.
One issue that often comes up is where the divorce should be filed. A service member may be from one state, stationed in another state, and deployed in yet another state or foreign country. Where should the divorce be filed?
A second issue is how to divide military benefits, including disability, military retirement and VA benefits. These issues apply to both active-duty and retire military.
A third issue is how to handle issues of child custody, visitation and support when a service member is transferred or deployed.
All of these issues are addressed below.
Where to File Your Divorce
The general rule is that you have to be a resident of the State of Texas for at least the past 6 months and the county of filing for at least the last 90 days in order to file for divorce in Texas.
If Texas is your home state — meaning you have lived in Texas with the intention of making it your fixed and permanent home (not just for military service) — then time spent outside the state or county while in service of the armed forces is considered time spent in Texas for purposes of establishing jurisdiction. This also applies to spouses accompanying someone serving in the armed forces.
If Texas is not your home state but you are serving in the military and stationed in Texas, you are considered a resident of Texas as long as you served at the Texas military base for at least 6 months before filing your divorce. Again this rule also applies to a spouse who is accompanying someone serving in the military.
If Texas is not your home state and you have not been physically stationed in Texas for the past 6 months, you may not be able to file for divorce in Texas. You should contact an experienced attorney if you have questions about your situation.
There are a number of different benefits provided for active and retired members of the military. If you or your spouse was or is in the military, how are those benefits divided in a divorce?
Before getting into the details of how military benefits are handled in a divorce, it is very important to understand the difference between community property and separate property, as those terms will come up several times in the explanation that follows. If you are not familiar with those terms, you can read our explanation here.
With those terms in mind, let’s look at the specific benefits that apply to active and retired members of the armed forces.
- Retirement benefits
Under the traditional retirement system, members of the armed forces are entitled to a retirement annuity after 20 years of service. Under federal law, only “disposable retired pay” is treated as community property and thus subject to division in a divorce. Therefore, a spouse would be entitled to half of the disposable retired pay that was earned during the marriage.
Some newer members of the military are enrolled in the Blended Retirement System (BRS). This system combines a lower annuity payment with a thrift savings plan and a lump-sum payment option. The annuity payment is treated the same as in the traditional system — the spouse is entitled to half of disposable retirement pay earned during the marriage.
The thrift savings plan is treated the same as a 401(k) or other defined contribution plan. The spouse is entitled to half of what was earned during the marriage.
If you are a service member or the spouse of a service member under the BRS, you want to make special provisions in your divorce decree to protect the right of the service member to receive a lump sum and the spouse’s interest in their portion of it.
Survivor annuities purchases during marriage are also considered community property, and thus subject to equitable division.
- VA disability benefits
Veterans Affairs disability benefits are not considered community property under federal law. That means they remain the separate property of the service member and no portion can be given to a spouse upon divorce. Since VA benefits can be taken instead of retirement pay, which is community property, it can be to the service member’s advantage to choose this option.
Service members who have a 50% disability rating or higher get both disability and retirement pay. This is called Concurrent Retirement Disability Pay (CRDP). In that case, the spouse would be entitled to a portion of the retirement pay but not the disability benefit.
Military retirees who have a combat-related disability can receive Combat-Related Special Compensation (CRSC). A retiree can only get one of CRDP or CRSC, not both at the same time, but the election can be changed yearly. CRSC is considered disability pay, and therefore the separate property of the service member and not subject to division in a divorce.
- Military disability benefits
With regard to temporary disability benefits, the treatment on divorce depend on whether the benefits are simply based on disability or also include normal retirement benefits based on length of service.
If the service member is not eligible to receive retirement benefits at the time of disability, then the entire benefit is based on disability and is not community property.
If the benefit is a mix of disability and retirement, the parties would need to calculate how much is based on disability (separate property) and how much of the benefit is based on retirement eligibility (community property).
Permanent disability pay is calculated the same as temporary disability pay.
- Other benefits
Life insurance policies issued to service members and veterans are not considered community property.
Voluntary separation benefits are calculated based on years of service and treated the same as retirement pay. In other words, that portion of the voluntary separation benefits that were earned during the marriage is considered community property.
The law is less clear on involuntary separation benefits. Some courts have said these benefits should be treated the same as voluntary separation benefits. Other courts have said they should be treated as compensation for the service member’s future earnings, and therefore are separate property.
Custody and Visitation During Military Duty
For the most part, divorce involving military service members are similar to other divorces when it comes to issues of custody, visitation, and support. Since those issues are addressed in other parts of this website, we will not go into detail here. Normally, one parent is designated as the primary conservator who can choose where the child lives, and other parent is given a visitation schedule and ordered to pay child support.
Military service members need to careful about geographic restrictions. Typically, divorce decree will prohibit the primary parent from moving away from a certain area, usually the county in which they live and surrounding counties. This can be particularly problematic for military service members, who are often asked to move by the military. You want to pay close attention to how this issue is treated in your divorce.
What happens if one of the parents is away temporarily on military duty? The answer depends on whether you are the primary parent or the non-primary parent.
If you are the primary parent and ordered to military duty, you can ask the court to temporarily designate another person to be the primary parent until you return. The non-primary parent will be given priority for this role, but you can also ask that someone else be designated if you think it is in the best interest of the child.
If the non-primary conservator is given this role, then the primary parent can choose someone to have temporary visitation while deployed. Meanwhile, the non-primary parent can ask that their child support be lowered during this time since they are now temporarily the primary caretakers.
If you are the non-primary parent and ordered to military duty, you can choose someone to exercise your visitation rights while you are away for duty. Once you return from duty, you can also ask for some additional visitation time with your child.
Contact Our San Antonio Military Divorce Lawyers
Divorces involving active or retired members of the military involve unique issues. It is important to hire an attorney who is experienced in handing military divorces. Let our experienced attorneys help you get the outcome you deserve.