Being served with divorce papers while on active military duty can present a confusing set of legal issues for the recipient. While deployed, most military members are too busy to respond appropriately and wonder how they will ensure their rights are protected throughout the process. As a Colorado Springs Military Divorce lawyer I have dealt with many of the questions that soldiers ask, and thankfully there are safeguards in place to protect a soldier’s rights.
What type of legal protection is offered to military personnel from divorce proceedings? Military personnel are protected by the Service Members Civil Relief Act, which allow them to “devote their entire energy to the military needs of the nation.” This special Congressional protection prevents any legal proceedings from taking place while the service member is still on active duty and for sixty days thereafter.
Does this mean a service member can simply ignore the divorce papers?
The answer is no. It is imperative that the court is informed of their active duty status and have an attorney present a motion to the court to delay the hearing. Eventually, even if a delay is granted, the divorce proceedings will have to move forward.
What if a service member is stationed in one state, but maintains legal residence in another state? Where should the divorce take place?
It all depends on who initiates the divorce action. If the service member initiates it, then the state where he/she is stationed can have jurisdiction over the case. However, there are federal protections in place if a spouse initiates the divorce. An attorney can explain how jurisdiction is determined.
What about military pay? How are these benefits protected in a military divorce?
The Uniformed Services Former Spouse Protection Act (USFSPA) dictates the conditions which must exist in order for a state to assume jurisdiction over retirement pay. Using the “Ten Year Rule”, the UFSPA can restrict direct payments of military retirement pay to a former spouse when the marriage lasts less than ten years, but some states may still award a former spouse a monetary award for a portion of military retired pay when a marriage lasts less than ten years.
If you have questions about how to deal with a military divorce in the state of Colorado, consult with an experienced Colorado Springs military divorce attorney. A qualified attorney can represent you during active duty and protect your interests throughout the entire process.