Overview of issues specific to military divorce in Texas
Military service members clearly have obligations that civilians do not, and a military member’s service to country uniquely impacts a service member’s marriage. A service member may marry in one state, be stationed in another, go on deployment and need to be ready to live in yet another state upon return. As a result, these unique obligations can also complicate a military service member’s divorce; however, there are special rules for military divorce that address jurisdiction for divorce, child support and custody, military benefits and other division of property issues.
To begin, military members have legal protection from divorce proceedings under the Service Members Civil Relief Act. Under the federal law, a court may delay legal proceedings when a service member is on active duty and for up to 60 days upon the service member’s return from active duty.
State law governs the rules of divorce and each state has its own set of divorce laws that impact division of property, child custody and spousal support, among other issues. The state where the divorce is filed is especially important for military couples because many states ease the residency and filing requirements for military service members and civilian spouses because of stationing requirements. Military members and civilian spouses considering divorce should be aware of such requirements because the laws of one state may benefit one spouse to the disadvantage of the other. For example, Texas is a community property state in which marital property is split evenly, whereas Oklahoma is an equitable distribution state where martial property is not divided exactly in half. However, a service member’s military pension is not completely subject to individual state law and is governed by the federal Uniformed Services Former Spousal Protection Act.
The USFSPA allows a military spouse to receive direct payment of a portion of a military retiree’s pay and provides some base privileges as well. The USFSPA allows state courts to divide the military pension according to state property division laws; however, the division of a military pension is not required under the law. In addition, a former military spouse may only receive up to 50 percent of a military member’s retired pay under the federal law. There are also special rules for child custody, visitation and child support for military members as well.
If a military service member is the custodial parent, the service member may request the court to name a temporary custodial parent until the military service member returns from service. The rights of the temporary custodial parent terminate upon the military member’s return. If a service member is the non-custodial parent and military service interferes with visitation rights, the military member may choose a relative or friend to stand in while on duty. A military member may request extra time with a child after returning home from duty to make-up the time missed while away. There are also special rules for child support.
A military member’s child support obligation may not exceed 60 percent of the service member’s pay and allowances. If military duty impacts a member’s income negatively, a court may create a temporary order that lowers the member’s burden.
The above lays out basic issues that may impact a military divorce. Working with a family law attorney experienced in military divorce is important to understanding the nuances involved in your particular situation and will help you best preserve your rights.