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The term “military divorce” is used when talking about a divorce where one or both spouses are active-duty military personnel or service members, including those in the national guard or reservists. As compared to a civilian divorce, there are additional requirements in a military divorce and, while this may add to the complexity and duration of the divorce process, those additional requirements are designed to help protect those serving our country who are facing a military divorce.
Overview of Texas Divorce Process
When one person wants a divorce in Texas, they are allowed to get it regardless of whether the other spouse wants it or not. This is true for both active duty service members and civilians alike. The overall process is the same for both, however the additional requirements for a military divorce have been mandated by federal and state law to help protect the service members against any unfair disadvantage due to their being in active duty.
Residency Requirements
When civilians want to file for divorce in Texas, they must first meet the residency requirement that one spouse live in Texas for 6 months and in the county where they are filing for 90 days prior to filing for divorce. Active duty service members and their spouses are offered some options not afforded to civilians in meeting the residency requirement. Any one of these options listed below allow for service members to meet the residency requirements necessary to file a military divorce in Texas:
- The service member or spouse meets the residency requirement for civilians.
- The service member’s or spouse’s permanent residence is in Texas, but they are temporarily stationed or deployed elsewhere. Texas Family Code § 6.303
- The service member’s or spouse’s permanent residence is in another state, but they are temporarily stationed in Texas. Texas Family Code § 6.304
- The service member has a permanent residence in another state, was temporarily stationed in Texas and then subsequently deployed from Texas and is currently on that same deployment. Texas Family Code § 6.304
If the residency requirement is met by the service member or by his or her spouse, then the divorce can be filed in Texas.
Service of Process
Once the residency requirement has been met, the divorce process begins with the filing of a Petition by one spouse. Once filed, the other spouse must be served with process. To be “served with process” means to be personally handed the required legal documents by a person authorized to do so. While the filing requirements for the Petition are the same for service members and civilians, the process of service differs.
In a civilian divorce case, in-person service is ideal although there are some alternatives if that is not possible. In a military divorce, though, in-person service is the only option. For active duty service members deployed abroad, in-person service can take some time to accomplish, at best, although depending on the location and nature of deployment, it could prove nearly impossible to serve the deployed spouse and may need to wait until his or her return.
If the spouses are in agreement on all issues, then the deployed service member may sign a waiver of service to avoid personal service. Although, a waiver of service is only acceptable in a military divorce if spouses are proceeding with an uncontested divorce.
After a civilian is served, he or she has a little over 20 days to respond through the courts by filing an Answer, after which the divorce process continues and moves forward to the next steps. This differs significantly from a military divorce to allow a deployed service member time to focus on active duty and put-off dealing with the divorce case until after his or her return from deployment.
Under the Servicemembers Civil Relief Act (SCRA), active duty service members are allowed a stay, or postponement, of the case up to ninety days after their return from active duty as long as the court is notified. 50 U.S.C. § 3935. The SCRA further protects active duty service members from falling victim to a default judgment being rendered against them while on active duty. 50 U.S.C. §3931.
Alternatively, active duty service members may waive these protections if they instead prefer to move forward with the divorce proceedings at the time they are filed.
Division of Property and Benefits
For both civilian and military divorces alike, property will be divided according to the community property model followed in Texas. Under this model, all assets and property acquired by either spouse during the entirety of the marriage is considered owned by the “community” created by the marriage, meaning that the spouses jointly own everything that is not considered separate property. Texas Family Code § 3.002. The only exception to the community property rule is if an asset or item is considered “separate property,” which means anything acquired by a spouse prior to the marriage, or acquired during the marriage by gift, inheritance or personal injury settlement or award. Texas Family Code § 3.001.
There is a special exception to the community property model for military divorces that involves the division of military retirement pay and military medical benefits.
The Uniformed Services Former Spouse’s Protection Act (USFSPA) specifically protects a former military spouse’s rights after divorce to the service member’s retirement pay and provides the rules for eligibility. 10 U.S.C. § 1408. The USFSPA provides the 10/10 Rule, which outlines that a couple must be married for at least 10 years during which the service member performed at least 10 years of military service creditable towards the retirement eligibility in order for the non-service member spouse to be eligible to receive a portion of the military retirement pay in a divorce settlement.
The National Defense Authorization Act (NDAA) of 2017 [later revised in part] amended how disposable pay is defined in the USFSPA when dealing with military retired pay, depending on whether the service member entered the service before or after September 8, 1980, and provides that specific information must be included in the award language in a Final Decree of Divorce in order to be enforceable. NDAA 2018 § 624.
In addition to military retirement pay, a spouse of a service member may be eligible to continue military health insurance benefits provided by TRICARE, depending on an overlap of years of marriage and active duty similar to the 10/10 Rule in the USFSPA:
- 20/20/20 Rule – This rule requires a minimum of 20 years of service, 20 years of marriage, AND 20 years overlap of the two. If met, the non-military spouse is entitled to TRICARE medical treatment, health insurance, and other benefits.
- 20/20/15 Rule – This rule requires a minimum of 20 years of service, 20 years of marriage, AND 15 years overlap of the two. If met, the non-military spouse will receive one year of TRICARE medical coverage and access to military pharmacies.
Both of these rules apply as long as the non-military spouse remains unmarried and has no other insurance plan. If the above TRICARE rules do not apply, then the non-military spouse may be able to use the Continued Health Care Benefit Program (CHCBP) if eligible.
Child Custody Determinations
In Texas, custody is awarded in terms of “conservatorship” with one parent named the sole managing conservator (having sole custody), or the parents named as joint managing conservators (having shared custody). When appointed jointly, one parent is designated as having the exclusive right to determine the child’s primary residence where the child will live the majority of the time.
The Texas Family Code presumes that appointing parents as joint managing conservators is in the best interest of the child, although it is possible to overcome that presumption if there has been a history of family violence or neglect. Texas Family Code § 153.131. There is no exception for parents in the military – it is presumed that a military parent’s appointment as a joint managing conservator is in the best interest of the child the same as with a civilian parent. A military parent is in no way precluded from being appointed as a joint managing conservator, or even from receiving the primary conservator designation.
The Texas Family Code addresses how to handle situations when a military parent is deployed, mobilized, or transferred for temporary military duty to a location that is a “substantial distance” from their home, and it materially affects that parent’s ability to fulfill their rights and duties as a parent conservator. Texas Family Code § 153.702. These situations may arise during or after the divorce process, and the Texas Family Code includes special provisions allowing for the military parent to quickly obtain a temporary court order appointing a designated person to have the exclusive right to designate the child’s primary residence temporarily while the military parent is away on active duty assignment. Texas Family Code § 153.703-707.
Child Support and Spousal Support
Child support is determined the same way for military and civilian parents. Chapter 154 of the Texas Family Code lays out the guidelines in determining the amount of child support that a parent may be ordered to pay the other parent. While there may be some exceptions to this rule, in general child support amounts are calculated based on a percentage of the obligated parent’s monthly net resources:
1 child 20% of monthly net resources
2 children 25% of monthly net resources
3 children 30% of monthly net resources
4 children 35% of monthly net resources
5 children 40% of monthly net resources
6+ children Not less than the amount for 5 children
This amount may be affected by the paying parent having child support obligations for children outside of the marriage. If you have questions about how to calculate your potential child support amount, please visit the Office of the Attorney General’s website to access a child support calculator.
Texas does not have laws that entitle a spouse to alimony, although one may be entitled to spousal support in Texas if they fall into one of the following categories:
- There was family violence within the two years prior to the filing of the divorce action or while the case is pending. Texas Family Code § 8.051(1)(A-B).
- The spouse seeking maintenance is unable to earn enough income to meet his or her minimum reasonable needs due to a physical or mental disability. Texas Family Code § 8.051(2)(A).
- The spouses have been married for ten years or longer and the spouse seeking maintenance is unable to earn enough income to meet his or her minimum reasonable needs. Texas Family Code § 8.051(2)(B).
- The spouse seeking maintenance is the custodian of a child of the marriage who requires substantial care and personal supervision due to a physical or mental disability, and that care prevents that spouse from earning sufficient income to provide for his or her minimum reasonable needs. Texas Family Code § 8.051(2)(C). In this situation, it does not matter whether the child is a minor or an adult.
In a military divorce, the only difference to the collective support obligations from those of civilians is that the total support amount may not exceed 60% of the pay and allowances of the active duty service member.
Divorce is complicated, and the unique circumstances that are faced in military divorces only layer additional complexities to the process. Our knowledgeable family law attorneys are experienced with helping active duty and retired service members through the divorce process. Call today to speak with one of our exceptional family law attorneys to see how we can help you through it.
