Divorce is never easy, but divorces involving service members with civilian spouses can raise some additional issues. Before you officially file for divorce or legal separation, familiarize yourself with issues commonly impacting military divorces to help yourself understand how to best move forward with separation.
Colorado requires that you or your spouse live in the state for 91 days before filing for divorce. If you are a service member and wish to initiate a divorce in Colorado, you or your spouse must have resided in Colorado for at least 91 days before doing so. Residency can be demonstrated to a judge using documents like your LES, tax returns, and drivers license. If you have moved recently and do not have these documents, your spouse may be able to successfully contend that the Colorado court does not have jurisdiction to hear your divorce case. Civilian spouses often have an easier time proving state of residence since they usually maintain the home while their service member spouse serves where necessary domestically or abroad.
Colorado Divorce Laws
As a no-fault state, Colorado requires judges to find only that the marriage is “irretrievably broken” as the basis for divorce. If you want a divorce but your civilian or service member spouse does not, the judge can, in theory, order marriage counseling prior to granting a divorce, but in reality will almost always allow the divorce to proceed with only one spouse making the request. You and your spouse are expected to negotiate in good faith to determine how martial assets will be divided, parental responsibility / custody will be shared, and what amount of support should be paid (and for how long).
In Colorado, all spouses are entitled to request alimony or support payments in a divorce proceeding, regardless of fault. Military retired pay is considered marital property in Colorado. Thus, your former spouse will often be entitled to receive a share of your military retirement benefits when you retire from service. The amount that an ex is entitled to depends on the length of the marriage and the amount the retired service member receives each month. So, if you were married for two years overlapping your 20 years of service, your spouse will be entitled to half of 10 percent (2 yr mrg / 20 yrs of service) or 5 percent of your monthly military retirement payment for life.
Colorado requires parents to pay child support until children are 19. Military spouses’ LES earnings, including BAH and BAS pay, make up income and can be used to determine support payments. Military retired pay and disability is also considered income for purposes of child support. The spouse receiving support has a right to request a wage garnishment, known in Colorado as an income assignment, for for monthly support payments, so that child support, as well as alimony / maintenance, is automatically withheld from the paying spouse’s wages and paid to the receiving spouse through the Colorado Family Support Registry.
If both parties are in the service, it often becomes very difficult to agree on shared parenting responsibility, and other matters concerning the children.
While the military has base lawyers for legal concerns, divorcing couples need a skilled divorce attorney to handle their divorce or legal separation in civilian court. A military court cannot grant a service member a divorce. Start protecting your legal rights and interests as a spouse and parent by hiring an attorney as soon as you know you want a divorce. Given the complexity of the issues discussed above, look for an attorney like Brian Boal of Boal Law Firm, who has experience handling military divorce cases.