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Divorces that involve active-duty military personnel add significant complexity to what is often already an intricate and emotional process. When domestic violence is involved, these challenges become even more pronounced. 

A domestic violence charge can significantly impact the outcome of a military divorce, influencing decisions related to child custody, child support, spousal maintenance, and the division of marital assets. Part of the reason for this is that if the charge leads to a conviction, that may be the end of that individual’s military career, a fact that could have a huge impact on their their lifestyle and future earning potential.

This comprehensive blog post will explore the various ways domestic violence assaults affect Colorado military divorces, providing an in-depth look at the legal landscape, the unique challenges faced by military families, and practical advice for navigating this difficult terrain.

Understanding Domestic Violence and Its Implications for Military Spouses

Most people are familiar with the general idea of domestic violence. It is a pattern of abusive behavior used by one individual to gain or maintain control over another someone with whom they have a domestic relationship. 

Under military law, this is defined as committing a violent offense against “a spouse, an intimate partner, a dating partner, or an immediate family member of that person.” It can include physical violence, sexual violence, emotional abuse, and economic abuse. In the context of a divorce, allegations of domestic violence can have significant legal and practical implications.

As mentioned above, the presence of domestic violence in a marriage can influence numerous aspects of the divorce process. For military families, these issues can be even more complex due to additional considerations such as deployments, military benefits, and jurisdictional issues.

An Overview of Military Divorce in Colorado

Technically, there is no such thing as a “military divorce.” All divorces in Colorado are handled in the same basic way, and the dissolution of marriage is primarily governed by state law. For example, Colorado being a no-fault divorce state means neither party needs to prove wrongdoing to file for divorce. Additionally, since our state follows equitable distribution laws for property division, assets and liabilities are divided fairly, though not necessarily equally.

However, military-specific issues are addressed under federal statutes like the Servicemembers Civil Relief Act (SCRA) and the Uniformed Services Former Spouses’ Protection Act (USFSPA).

There are unique considerations for military pensions, which are governed by federal law, and additional complexities can also arise around issues such as child custody and deployment.

Before we break down each of those issues to help you navigate military divorce in Colorado, let’s reorient for a moment to discuss domestic violence in the military.

Consequences of Domestic Violence in the Military

For a long time, battered spouses of military members living on military property had limited options for seeking justice when abuse occurred. However, changes in the past few decades have made this a thing of the past.

H.R. 5515 includes provisions that classify domestic violence as a distinct crime under the Uniform Code of Military Justice. This change allows spouses who have experienced violence to pursue divorce and, in some circumstances, press charges against their abusers.

Then there is the Lautenberg Amendment, which makes it a felony for anyone who has been convicted of a misdemeanor domestic violence charge to “ship, transport, possess, or receive firearms or ammunition.” For many members of the military, this effectively ends their careers since they are unable to perform their duties.

Protective Orders and Their Role

Protective orders, also known as restraining orders, are legal orders issued by a court to protect victims of domestic violence. In military parlance, these are known as Civilian Protective Orders (CPO). The United States Military has its own protective orders called Military Protective Orders (MPO).

In many ways, CPOs and MPOs are similar. The two big differences are that 

1. MPOs are not enforceable by civilian law enforcement and
2. MPOs do not restrict the subject of the MPO from possessing or purchasing firearms.

The things they have in common include:

• Preventing the alleged abuser from contacting or approaching the victim.
• Awarding temporary custody of children to the victim.
• Requiring the alleged abuser to vacate the marital residence.
• Providing provisions for child support and spousal support.

If you violate an MPO, it can be charged as violations of orders under Article 90, UCMJ.

Unique Considerations for Military Divorces (and How Domestic Violence Can Play a Role)

Below, we will cover specific differences between civilian and military divorces and where issues surrounding domestic violence allegations can play a role.

Residency Requirements for Colorado Divorce

Before filing for a military divorce in Colorado, you or your spouse must meet residency requirements. Generally, this means being a Colorado resident for at least 91 days. 

This is also true for people who want to divorce in Colorado and aren’t in the military, but service members can have a specific exemption: namely, if an active-duty service member is stationed in Colorado, it may be possible to claim residency regardless of the duration of stay.

Pay attention to those qualifiers, though – Colorado will only waive the 91-day residency requirement in certain instances, so make sure that you confirm your ability to file for divorce in our state before doing so.

Impact of the Servicemembers Civil Relief Act (SCRA)

The Servicemembers Civil Relief Act was enacted to address situations where military personnel faced disruptions in legal matters, such as child custody changes by ex-spouses during their deployments.

Under the SCRA, marines, soldiers, sailors, commissioned officers, and other servicemembers are shielded from legal actions while they are actively serving in the military. Even after leaving active duty, individuals can benefit from SCRA protections for up to one year.

The SCRA ensures that military servicemembers can concentrate on their duties without the distraction of legal disputes back home. It offers peace of mind by safeguarding their personal and financial interests, while also ensuring the protection of their family members.

That’s right. In addition to servicemembers, the SCRA extends its protections to their dependents, including children, spouses, and other individuals whom they have supported for at least 180 days prior to seeking SCRA protection.

In divorce proceedings, the SCRA ensures that default judgments are stayed, allowing servicemembers the opportunity to address legal matters upon their return from active duty. While a divorce proceeding can be initiated during active duty, the SCRA enables hearings to be postponed, providing servicemembers the necessary time to prepare for civil litigation with the guidance and resources of legal counsel. 

This can delay legal proceedings like divorce while servicemembers are on duty. Because of this, a military divorce can take significantly longer than a civilian one depending on the circumstances. In cases where a stay has not been automatically granted, servicemembers may need to request one. 

This last part is incredibly important for servicemembers who have been served divorce papers. Just because the SCRA allows you to get a stay does not mean that you can simply ignore it if your spouse files for divorce. If you want to pursue a temporary halt to case proceedings, it is vital to consult with legal counsel.

Where domestic violence allegations are present, it is vital to understand that the protections afforded by the SCRA only apply to civil cases – there is no protection against criminal charges. This complicates divorce cases involving domestic violence, because while a servicemember facing criminal charges cannot “put them on pause,” they may still be able to use the SCRA to delay divorce proceedings with a stay. While the stay is ongoing, temporary orders regarding child support, child custody, and property possession might be issues to protect the servicemember’s spouse and children.

How Colorado Military Divorces Handle Property Division

In all divorces, a distinction is made between what is considered marital property versus individual property. Domestic violence can influence the division of marital assets and the awarding of spousal support. 

Courts may consider the following:

Economic Abuse

If one spouse has used financial control as a form of abuse, the court may compensate the victimized spouse through a more favorable division of assets.

Spousal Maintenance

Spousal maintenance is designed to help maintain the standard of living for the lower-earning spouse post-divorce. The presence of domestic violence can impact the amount and duration of spousal support awarded. Courts may award additional support to a spouse who has been financially dependent on an abusive partner.

Additionally, when a servicemember divorces, the court must consider military-specific factors such as excluding combat pay from calculations and termination of spousal maintenance upon remarriage as described under the USFSPA.

Possible Continued Health Care and Benefits. Non-military spouses may qualify for continued health care under TRICARE, depending on marriage duration and other factors, which should be explored during divorce proceedings.

Base Privileges for Ex-Spouses. Under the 20/20/20 rule, ex-spouses meeting specific criteria may retain base privileges like commissary and exchange access post-divorce.

Property Division

In some cases, courts may award a larger share of marital property to the victimized spouse, especially if the abuser has caused financial harm.

Military divorces add an extra layer to this because there are certain benefits that servicemembers receive which are not available to the general public. Some of these benefits are defined as marital property and can be divided; others are not.

Military Pensions. Military pensions are considered marital property and may be subject to division. The USFSPA governs this division in Colorado, where the court may allocate a portion of the pension to the non-military spouse based on the marriage’s duration during active-duty service.

USFSPA limits pension division to fifty percent of the member’s disposable retired pay, with potential for up to sixty-five percent if alimony and/or child support obligations are also applicable. Exceptions may apply in cases involving multiple court orders from different spouses. 

State law governs whether a spouse might be entitled to more than the federal maximum, and in Colorado nonvested military pensions are considered marital property. By ruling of the Colorado Supreme Court, a military spouse is entitled to one half of a servicemember’s monthly benefits at the time they retire, multiplied by the number of years they were married.

VA Disability Pay. Federal law explicitly exempts VA disability compensation from property division in divorce. Similarly, military disability retirement payments are largely shielded from division unless stemming from service-related incapacitation.

Child Custody and Visitation Considerations for Military Divorces in Colorado

In our state, child custody decisions always prioritize the child’s best interests. However, in military divorces, factors like frequent relocations due to deployments can complicate stability and relationships. 

Because of this, courts may grant temporary custody adjustments or establish long-distance visitation plans. Parenting plans may even include provisions for alternative caretakers.

Effective communication and flexibility are critical for parenting plans considering future deployments.

Unsurprisingly, domestic violence allegations can hugely influence this. Courts will consider several factors, including:

Child Safety

The court prioritizes the safety of the child and will evaluate the risk posed by a parent with a history of domestic violence.

Parent-Child Relationship

The quality of the relationship between the child and each parent is assessed, with consideration given to any history of abuse.

Impact on the Child’s Well-being

The emotional and psychological impact of domestic violence on the child is a critical factor in custody and visitation decisions.

A domestic violence conviction can result in the abusive parent receiving limited or supervised visitation or, in severe cases, losing custody altogether. The court may also order the abusive parent to attend counseling or anger management programs as a condition of visitation.

Navigating the Legal Process of a Military Divorce Involving Domestic Violence Accusations: Tips and Advice

Navigating the legal process of a military divorce involving domestic violence requires careful planning and the right support. As we’ve already touched on in a number of ways, the alleged presence of domestic violence can significantly influence the court’s decisions.

Here are some tips to get through this process while protecting both your family and your own future, whether you are seeking divorce due to domestic violence or if your partner accuses you in the midst of divorce proceedings:

Obtain Legal Counsel Fast

A skilled attorney well-versed in both family law and military law can help you understand your rights, navigate the legal system, and advocate for your best interests. The faster you secure quality legal counsel, but more likely you are to earn the most positive outcome.

Document Evidence

If you are alleging abuse by your partner, it is vital to keep detailed records of all instances of domestic violence, including photos, medical records, and police reports. On the flip side, evidence can be just as important to show that you did not actually engage in violence against your partner, that there was no pattern of violent behavior, or that, if you did act violently, that you are actively seeking help to prevent future problems.

Prioritize Safety

When dealing with a violent partner, ensure your safety and the safety of your children by seeking protective orders and utilizing available resources – both in the military and through civilian legal methods.

Consider Mediation Carefully

While mediation can be a valuable tool in divorce cases, it may not be appropriate in situations involving domestic violence due to power imbalances.

Understand Military Protocols

Be aware of military-specific protocols and benefits that may affect your divorce proceedings and settlement.

Military Divorce Is Complicated – Domestic Violence Increases Those Complications

These are just some of the things that you will need to consider if you are going through a military divorce and domestic violence is involved. Every situation is different, and it is vital that you work with a Colorado divorce attorney who has a clear understanding of military law and how it will impact everything. If you can find someone who has experience in criminal law, even better.

Whatever you do, seek help quickly. The earlier your lawyer is able to start building your case, the better your chances at achieving the most positive outcome. Get in touch today.