Divorce is never simple, but when one or both spouses serve in the military, additional layers of complexity arise. Federal laws protect service members from default judgments while deployed. Special rules govern how military pensions are divided. Unique considerations affect child custody when a parent may be stationed across the country—or around the world.
Texas has more active duty military personnel and veterans than any other state, making military divorce a significant area of family law practice. At Griffin & Cain, Attorneys at Law, our Conroe divorce attorneys have experience helping military families in Montgomery County, Walker County, and the greater Houston area navigate these unique challenges.
Where to File: Jurisdiction in Military Divorce
One of the first questions in any military divorce is which state has jurisdiction to hear the case. Unlike civilian divorces where you simply file where you live, military families have options:
Texas Residency Requirements
To file for divorce in Texas, you must meet the standard residency requirements:
- At least one spouse must have been a Texas resident for six months
- At least one spouse must have been a resident of the county where you're filing for 90 days
For military members, residency can be based on:
- Legal residence (domicile): The state you consider your permanent home, regardless of where you're stationed
- Physical presence: Where you're actually stationed or living
- State of military assignment: The state where you're currently serving
This means a service member stationed at Fort Cavazos (formerly Fort Hood) may be able to file in Texas even if their legal residence is another state—and may have the option to file in either location.
The Servicemembers Civil Relief Act (SCRA)
The Servicemembers Civil Relief Act provides significant protections for active duty service members in civil legal proceedings, including divorce. Understanding these protections is essential for both service members and their spouses.
Stay of Proceedings
A service member can request a stay (postponement) of divorce proceedings if:
- They're on active duty or within 90 days of release from active duty
- Military service materially affects their ability to participate in the proceedings
- They submit a letter from their commanding officer stating their current duties prevent them from appearing and estimating when they can appear
The court must grant at least a 90-day stay upon request. Additional stays may be granted, and courts have discretion to extend protections based on the service member's situation.
Default Judgment Protections
Before entering a default judgment in any civil case (including divorce), the court must:
- Require the plaintiff to file an affidavit stating whether the defendant is in military service
- Appoint an attorney to represent absent service members in certain circumstances
- Stay proceedings if the defendant is on active duty and unable to appear
These protections prevent service members from having divorce cases decided against them while they're deployed and unable to participate.
Implications for Non-Military Spouses
If you're the civilian spouse seeking divorce from a service member, SCRA protections may delay your case. This is frustrating but legally required. Working with an experienced attorney helps you navigate these requirements and move your case forward as efficiently as possible.
Dividing Military Retirement Pay
For many military families, the service member's retirement pension is the most valuable marital asset. The Uniformed Services Former Spouses' Protection Act (USFSPA) governs how military retirement can be divided in divorce.
The 10/10 Rule
A common misconception is that you must be married for 10 years during 10 years of military service to receive any portion of military retirement. This is not true. The "10/10 rule" only affects how payments are made:
- If married 10+ years during 10+ years of service: The Defense Finance and Accounting Service (DFAS) will pay the former spouse's share directly
- If less than 10 years overlap: The former spouse is still entitled to their share, but the service member must make the payments (DFAS won't pay directly)
Calculating the Marital Portion
Texas courts typically divide military retirement using a formula that considers:
- Total years of creditable military service
- Years of service during the marriage
- The service member's rank at retirement (or projected rank at retirement if not yet retired)
The former spouse's share is usually calculated as:
50% × (Months Married During Service ÷ Total Months of Service) × Monthly Retirement Pay
Survivor Benefit Plan (SBP)
The Survivor Benefit Plan provides continued payments to a designated beneficiary after the retiree dies. In divorce, the court can order the service member to name the former spouse as an SBP beneficiary. This is crucial because without SBP coverage, military retirement payments end at the service member's death.
Child Custody in Military Divorce
Child custody presents unique challenges when one parent is in the military:
Deployment Considerations
Courts cannot use a parent's military service or potential deployment as the sole factor for denying custody. However, practical realities must be addressed:
- What happens to custody during deployment?
- How will the service member maintain a relationship with children during extended absences?
- Who will care for children if the custodial parent deploys?
Many military custody orders include provisions for temporary custody modifications during deployment, often designating a family member (like a grandparent) to exercise the service member's time.
Family Care Plans
The military requires single parents and dual-military couples to have Family Care Plans designating who will care for children during deployment. These plans should coordinate with custody orders but don't replace them.
Relocation Issues
Military families frequently relocate due to PCS (Permanent Change of Station) orders. Geographic restrictions in custody orders may need to account for potential military moves. Courts must balance:
- The military parent's service obligations
- The civilian parent's rights and interests
- The children's stability and relationships with both parents
Child Support and Military Families
Calculating child support for military members requires understanding military compensation:
What Counts as Income
Military income for child support purposes includes:
- Base pay
- Basic Allowance for Housing (BAH)
- Basic Allowance for Subsistence (BAS)
- Special pay (flight pay, hazard pay, etc.)
- Bonuses (typically prorated over the bonus period)
Enforcement Options
Child support owed by military members can be enforced through:
- Involuntary allotment: The military deducts support directly from pay
- DFAS garnishment: Up to 50-65% of disposable earnings can be garnished
- UCMJ consequences: Failure to support dependents can result in military discipline
Healthcare and Benefits After Military Divorce
TRICARE Coverage
Former spouses may continue receiving TRICARE health coverage if they meet the "20/20/20" rule:
- The marriage lasted at least 20 years
- The service member served at least 20 years
- At least 20 years of the marriage overlapped with military service
Former spouses who meet the "20/20/15" rule (15 years of overlap) receive one year of transitional TRICARE coverage.
Children remain eligible for TRICARE as long as they meet dependency requirements, regardless of the marriage duration.
Commissary and Exchange Privileges
Former spouses who meet the 20/20/20 rule retain commissary and exchange shopping privileges. Others generally lose these benefits upon divorce.
Military ID Cards
Upon divorce, former spouses must surrender their military ID cards unless they qualify for continued benefits. The divorce decree should be presented to the military ID card office.
Frequently Asked Questions
Can I get divorced while my spouse is deployed?
You can file for divorce, but your spouse has the right to request a stay of proceedings under the SCRA if deployment prevents their participation.
Do I need the service member's consent to divorce?
No. Texas allows no-fault divorce without the other spouse's consent. However, the process may take longer if the service member exercises SCRA protections.
How is BAH treated in property division?
BAH itself isn't divided as property, but it's considered income for calculating child support and spousal support.
Will my spouse's chain of command get involved?
Military commanders generally don't interfere in divorce proceedings, but they may get involved if there are allegations of misconduct, failure to support dependents, or violations of military regulations.
Work with Attorneys Who Understand Military Divorce
Military divorce involves a complex intersection of federal and state law. Working with attorneys who understand these unique issues helps ensure your rights are protected and your case is handled correctly.
At Griffin & Cain, Attorneys at Law, our family law team has experience with military divorce matters. We serve military families throughout Montgomery County, Walker County, and the Houston area, including those stationed at nearby military installations.
Contact us today for a free consultation. We'll help you understand your options and navigate your military divorce with confidence.
