We’ve written many times about divorce in Texas. But if you’re a member of one of the branches of military service, or married to someone who is, there are a few differences that have to be considered.
Because military members experience frequent moves, pinning down a place to file the divorce can be a challenge.
Texas requires that at least one spouse lives in the state for a minimum of six months, in the county for three or more months and that the active service member is stationed in Texas. If the filing spouse meets the residency requirements, he or she is eligible to file in a Texas family court.
If the member is on active duty in another state, the process may be more complicated, requiring filing in a different state. A divorce lawyer who is familiar with the process of military divorce should be consulted.
Service Of Process
Like a civilian divorce, the other party must be served with papers. However, service of process may become a challenge if the service member is deployed or stationed elsewhere for a time.
The Service Members Civil Relief Act, 50 UCS section 521, prevents the service member from being held in default if they don’t respond timely to a summons for divorce while on active duty. They can postpone action in a divorce for their entire deployment and up to 60 days following. If a divorce was already being planned, is uncontested, a service member can sign a waiver for service, allowing the divorce to proceed.
Property Division And Military Benefits
Like a civilian divorce, community property laws also apply to military divorces. Basically, anything brought or earned during the marriage by either party is considered marital property, with some exceptions (i.e., separate property.)
If the couple abides by a prenuptial/postnuptial agreement or is able to create their own property division, they can save time and money during the divorce. You can read more about how the Texas community property division works here and here.
Civilian retirement benefits acquired during the marriage will be treated as an asset and divided accordingly. However, military benefits fall under the Uniformed Services Former Spouses’ Protection Act (USFSPA), federal rules that govern the division of military retirement benefits. Generally, the couple must be married for at least ten years while the service member was on active duty. However, Texas law requires any future military benefits to be divided regardless of the marriage duration.
Additionally, a couple must also include a provision in the divorce decree that addresses premiums for the Survivor Benefit Plan. Minor children will continue to receive healthcare benefits. If the marriage lasted longer than 20 years, the spouse will too. The service member will be responsible for arranging military ID cards for any dependents.
Child Support, Parenting Plans And Deployments
Child support payments are handled the same for both civilian and military parents. Texas law sets out specific guidelines for support payments, but the payments cannot exceed 60% of the service member’s pay.
Because Texas courts prefer for children to have a strong relationship with both parents, a parenting plan is part of every divorce. Parents can use the Texas standard possession order, or they can devise one that suits their family’s needs. But visitation schedules can be more challenging when one parent is active duty military.
Texas family courts abide by the “standard possession order,” which includes:
- Weekends on the 1st, 3rd, and 5th weekends of each month
- Thursday evenings during the school year
- Alternating holidays, such as Thanksgiving and Christmas every other year
- During summer vacation, 30 days is an “extended period of time.”
This is the order if the parents live more than 100 miles apart:
- One in-person visit a weekend per month
- No weeknights during the school year
- The same alternating holiday schedule as Standard Possession
- 42 days for spring break/summer vacation
If the parents are unable to agree on a parenting plan, a judge will submit a ruling and one will be creating for them.
In the case of a military family, the parenting plan must include special considerations:
- What do you do if the military parent is deployed?
- What happens if the military parent is transferred out of the state of Texas, or out of the US?
- What will happen if one of the spouses remarries?
Should the Standard Possession order not work, your family law attorney can create a Modified Possession Order with the other parent, if they agree to it. Modifying the possession order will let you create one that better meets the family’s needs, especially if one parent is deployed or otherwise out of the state.
Fort Worth’s Compassionate Divorce Attorney
Wendy L. Hart is an experienced family law attorney helping people throughout Tarrant County who need help in a divorce. As a divorcee herself, Wendy understands the process as well as the difficulties involved. We represent both men and women. We’ll make sure you’re treated fairly and will protect your interests and your children.