Between child custody, spousal maintenance, property division, and child support, divorce is complicated enough without the logistical issues of military deployments. Divorces involving active-duty military spouses require the help of an experienced family law attorney and some understanding of how federal laws play a part in these legal proceedings.
1. Deployments often require extensions of court proceedings.
Under normal circumstances, one spouse (petitioner) serves the divorce papers on the other spouse (respondent). In Texas, the respondent usually has until the Monday after the expiration of 20 calendar days (yes, it’s an interesting rule) to file a response with the court. If the respondent does not file a response in this time frame, the judge may issue a default judgment in favor of the petitioner. In other words, the petitioner gets almost everything he or she wants.
Active-duty military spouses may not be able to file a response within 20 days. The Servicemembers Civil Relief Act allows active-duty service members to request a “stay” (that is, to delay the proceedings).
90-day extensions for active-duty military personnel to respond to divorce petitions and other civil actions. The initial stay is for at least 90 days. The court can grant extensions after 90 days, but one can’t postpone the divorce forever. The purpose of the "stay" is to delay the court action as long as the military member's duties interfere with their participation.
2. Dividing military pensions can be complicated.
The most complex part of many divorces is property division. Texas is a community property state, meaning that all property gained by either spouse during the marriage (except for certain gifts and inheritances) is equally owned by each spouse.
State law is not the only thing guiding a military divorce, however, as the federal USFSPA (Uniformed Services Former Spouse Protection Act) stipulates the rules for dividing disposable military retired pay. Under the USFSPA, military retired pay is treated as marital property. This means that former spouses of military personnel are often entitled to a percentage.
Non-military spouses must be married to the military spouse for at least 10 years, however, in order to get garnishments from the disposable retired pay. Spouses who have been married at least 20 years to an active-duty military spouse (with at least 20 years overlapping with military service) may get access to TRICARE and commissary benefits after the divorce.
3. Military parents should designate someone to take over possession (conservatorship) upon deployment.
It’s usually in the child’s best interests to have access to both parents. However, this usually isn’t feasible when the active-duty military spouse deploys to a theater of war or, even, a different country. In these circumstances, co-parents will need to abide by temporary possession orders. Usually, the non-possessory parent assumes care of the kids until the military spouse’s deployment is over.
Military or not, spouses in marriages that just aren’t working have every right to file for divorce. Matters such as possession (custody) and property division, however, are made more complicated by active-duty military deployments and various federal laws. Kimbrough Legal, PLLC can simplify these issues and guide you through the divorce process as efficiently as possible. Reach out to our team today for professional, client-centered legal counsel.
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Kimbrough Legal, PLLC
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