Service
The first step in every divorce case is for one spouse to file an Original Petition for Divorce and have the other spouse served with the petition. If a service member is not deployed and lives off base, service should be conducted as with any other divorce using a process server.
Serving someone that lives on base will still require a process server, however, there will be additional steps to be taken. While a commanding officer is not required to assist in completion of service, they are not allowed to interfere with it. The process server will need to check-in upon arriving at a military base and work with military personnel to identify and serve the service member with the Petition for Divorce.
If a service member is currently deployed, service will be bound by the Hague Convention and regular standards for serving someone outside of the country.
Differences in a Military Divorce
As is the case with all divorces, a military divorce will involve identifying the pieces of property within the community estate, dividing the property, and making provisions for any children of the marriage to include conservatorship, possession and access, and child support and medical support.
In addition to the typical items divided in a divorce such as real property, vehicles, bank accounts, and retirement accounts, there are assets that may be applicable to a military divorce that are not present in a non-military divorce.
The military retirement pays, thrift savings plan, and health care benefits may be divided and awarded in a military divorce. Depending on the number of years the spouses were married that overlap with service time, a former spouse may also be entitled to continued access to military commissaries and health insurance.
Another important consideration is whether a spouse is receiving military disability payments at the time of divorce. While these payments may be included in the calculation of child support, these payments cannot be divided between the spouses in a divorce and are the separate property of the service member.
Child-Related Issues
Deciding conservatorship, possession and access, and child support can be very similar to the process in a non-military divorce.
However, if a spouse is currently on active duty at the time of the divorce, the parties should consider including provisions related to custody in the event of a deployment. This could include a temporary change in the conservator with the right to designate the primary residence of the child, a change in the possession order to accommodate the deployment and prescribe make-up time, and/or provisions relating to a third-party exercising possession of the child during a military deployment.
Calculating child support for service members is also something that can cause some confusion. The Texas Family Code defines what can be considered in calculating a non-custodial parent’s net resources for the purposes of calculating child support. A common question that arises is the treatment of VA disability payments as it relates to child support calculations. While the states are prohibited by federal law from considering VA disability payments in the division of the marital estate, the states are allowed to consider these payments in calculating child support.
Therefore, the VA disability payment received by the service member will be included for child support purposes. Because there are many components to military pay that should be explored in calculating child support payments, it is a best practice to request and review the service member’s Leave and Earnings Statements. This document will show all pay and financial information for a service member. Some components that may appear on this statement is the service member’s Base Pay, Basic Allowance for Housing, Basic Allowance for Subsistence, Special & Incentive pay, VA Disability pay, and/or Family Separation Pay. All these components may be used to calculate a service member’s net resources for the purpose of calculating child support.
There are many legal considerations when it comes to a military divorce. If you or your spouse are a current or former military service member, our office has experience dealing with the intricacies of Texas military divorces. Contact us here or by phone to schedule a consultation with one of our experienced and knowledgeable attorneys.