By Staff Attorney
By Staff Attorney
The Gasper Law Group, PLLC
If your spouse is in the military, and if you plan to divorce, you likely have numerous questions about your military benefits. For instance, will you keep your health insurance? Will you still enjoy military discounts and pension benefits? What happens if you or your spouse later remarries?
A family law attorney can provide specific insight and answers, based on your circumstances. Life obviously changes in huge and unpredictable ways after dissolution of a marriage, but during the separation, spouses and all family members keep benefits.
Coverage for Children and Ex-Spouses
Your dependent children can still receive medical coverage through TRICARE, the military health insurer. Until the age of 22, children remain legal dependents of the service member unless they marry. For the ex-spouse, benefits vary, depending on how long you and your spouse were married. As an ex-military spouse, you won’t qualify for full benefits unless all of the following apply: Continue reading →
By The Gasper Law Group
Whether your husband of 20 years blindsided you with a request to separate after returning from serving in Afghanistan, or you decided to end your marriage after months of painful deliberation, you don’t need to be told that divorce is an emotionally devastating and confusing experience. However, if you or your spouse served in the armed services, you need to be aware of the special rules and laws that govern military divorce. The information below explains several key elements involved in the process.
Calculating Child Support
Parental income serves as the basis for calculating any child support, but the computation of the gross income of a person in the military must include entitlements. Courts factor in revenue from sources like GI benefits, combat pay, deployment bonuses, hazard pay and separate ration.
Designating Child Custody (or what Colorado calls “parenting time”)
When establishing terms for child custody after a military divorce, the agreement should accommodate the deployment of the military spouse as well as his or her changing schedule. The care plan must address issues such as modes of communication during deployment as well as provisions for leave and vacation time. Continue reading →
By Christopher M. Nicolaysen
The Gasper Law Group, PLLC
In today’s transient society, parents that have been divorced in Colorado will often move out of this state and seek to take their child or children with them. The relocation of a party out of the State of Colorado can impact the amount of parenting time both parties will have with their minor child(ren). In Colorado, relocation of a minor child(ren) is controlled by statute and case law.
Pursuant to C.R.S. § 14-10-129, when the parent with whom the minor child resides the majority of the time seeks to relocate with the child to a residence that substantially changes the geographic ties between the child and the other party, the primary residential parent shall provide to the other parent with (1) written notice as soon as practicable of the intent to relocate, (2) the location of where the party intents to reside, (3) the reason for the relocation, and (4) a proposed revised parenting plan. Relocation hearings are given priority on the court’s docket.
Both the relocating parent and the non-relocating parent share equally the burden of demonstrating why it is in the child(ren)’s best interest to relocate or stay. In re the Marriage of Ciesluk, 113 P.3d 135 (2005). Further, the Court in Ciesluk stated, a court must begin its analysis with each parent on equal footing; a court may not presume either that a child is better off or disadvantaged by relocating with the majority parent. Continue reading →
By Gretchen A. Bundy-Ladowicz Staff Attorney and Former JAG Attorney The Gasper Law Group, PLLC There seems to be a great deal of confusion, misinformation, and basic ignorance on the topic of the divisibility of a military pension in a dissolution proceeding. The short answer is that, yes, a military pension is marital property that is subject to division in a divorce proceeding. That being said, as is the case so frequently in the law, things are never as simple as the short answer. The cornerstone statute addressing the division of military pension is the Uniformed Services Former Spouses’ Act (USFSPA). Before USFSPA, the United States Supreme Court had held in McCarty v. McCarty that the states were actually precluded from dividing military retired pay at divorce. The Court did not close the door completely on the issue. The Court went on to provide that Congress could change this through appropriate legislation. Thus, the USFSPA came to be and applies to disposable retired pay payable after June 25, 1981, the day of the McCarty decision, and to any court decree entered after that date. The Act provides that courts may, but are not required, to divide military retired pay incident to divorce. The Act leaves to the states to determine whether military retired pay is a marital asset subject to division or a separate asset that is solely the property of the servicemember. In Colorado, disposable military retired pay is subject to equitable division. As is the case with the division of anything in a court of general equity, equitable does not mean mathematical equality. However, the method for determining a spouse’s share actually is a math equation. In 1995, the Colorado Supreme Court in In re Marriage of Hunt established the use of the “time rule” formula for division of military pensions: Continue reading →
Military servicemembers face a myriad of challenges when they are deployed, in training or otherwise unavailable due to their military responsibilities and commitments. The problem is evident in many divorce and parenting cases where the non-servicemember files for a divorce or for parenting time orders when the military parent is unavailable to participate. In any divorce or parenting case involving a military service member, the application of the Servicemembers Civil Relief Act (SCRA) can create a roadblock for either or both parties in resolving such a case. The successful application of the SCRA results in delay. The SCRA allows a servicemember the opportunity to avoid a final hearing in a parenting or divorce case because he or she is unavailable due to their military orders. In order for the court to find a servicemember “unavailable” the applicant must follow procedural court rules and provide specific information to the court regarding their “unavailability”. The applicant must provide a letter describing their current military duty requirements and a second letter stating that the applicant’s current military duty prevents the member from appearing in court and properly defending any current legal action. If the application to the court to delay the proceedings is not done properly the request may be denied and the case may move forward with or without the servicemember’s presence.
You’re military or retired military and getting a divorce. What does this mean for your military retirement? Just like many areas of family law the division of military retirement is governed by law but fact intensive. What does this mean? The division of your military retirement will depend on a variety of factors.
First, as the law stands now, the only portion of military retirement that the state court has the authority to divide as property is the portion that is “disposable”. Disposable military retirement is what is left over after such things as a VA disability election and other payments defined by statute.
Second, Colorado courts often divide your disposable military retirement via the “Hunt/Gallo” formula which is named after two very specific Colorado cases. This formula considers the overlapping months of marriage and service and then giving the non-service member spouse a certain percentage of that.
This all sounds simple enough, right? Take your military retirement, get the highest disability rating you can, subtract that from the total amount and your spouse will get less. WRONG! This is a bad idea, the courts are wise, they have developed case law which allows them to look at the timing of the election and take other martial assets to make an equitable division of the property. The court could consider the timing of the election and award other martial assets to your spouse to make up for the portion of the retirement they are not receiving because of the disability election. The court could also award spousal maintenance to your spouse if a need is established.
Military deployment or other active duty requirements with the military brings many different challenges. Not only is there the anxiety of leaving friends and family behind but inevitably there are questions and concerns with how your personal affairs will be dealt with in your absence. Many legal issues could arise before or during your deployment. Take John and Katie for example. John and Katie have been married for 5 years and have a child, John Jr. Katie received her active duty orders last month and is now overseas. John now decides he wants a divorce and proceeds to file divorce papers and requests custody of John Jr. What does Katie do?
Whether you are on Federal active duty in the Army, Navy, Air Force, Marine Corps, Coast Guard, or other federal agency, the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA) helps protects you from certain civil judgments and liabilities like the example above during your period of active duty. The Act also provides limited protection for dependents of those serving in the military.
The SSCRA takes effect the moment you receive active duty orders. It protects you from high interest rates, default judgments, and other legal rights while on active duty – like a spouse filing for divorce and obtaining custody of a child while you are unaware of any proceedings taking place. Among other things, the SSCRA requires creditors to cap interest rates, tolls time limitations on when you can bring legal action against another, and protects you from eviction and repossession of personal property. The Act can also protect your family and dependents from being evicted from your residence during your active duty period. You should be prepared to show your orders to potential creditors, landlords or other persons who may need proof of your orders before changing any interest rates, payment plans or cancelling a lease.
Now back to John and Katie. Fortunately for Katie, the SSCRA, along with a good attorney, could save the day. John cannot circumvent the legal process simply because Katie is on military leave and unable to respond to any request for divorce or attend related court proceedings. In any case like this, John must first serve Katie with notice of the divorce and request for custody. John could have Katie served while on active duty but this is often difficult to accomplish. Until John serves Katie with the divorce papers, John cannot do anything in this case.