Active Duty Army Personnel Face Additional Challenges In Divorce

Individuals serving in the Army or married to a person in the Army who wish to divorce will face issues and complicated laws particular to military divorce. This article briefly addresses a few of the divorce-related issues that arise when at least one spouse is a member of the Army or other branch of the armed forces.

Protection from default judgments during military service

The Servicemembers Civil Relief Act (SCRA), formerly called the Soldiers’ and Sailors’ Civil Relief Act, protects servicemembers in the Army and other branches of the military from default judgments against them in civil actions while they are on active duty.

The SCRA also allows a Texas court, on its own motion or on a motion on behalf of a servicemember, to postpone civil actions, including actions for divorce and child custody, for at least 90 days. Active duty Army also have the right under the provisions of the SCRA to reopen a civil action in which a default judgment was issued against them if (1) the servicemember’s military service affected his or her ability to mount a defense to the action or (2) there exists a legal defense available to the servicemember.

Residency, service of process and jurisdiction

Because divorce is a matter of state law, a court in Texas must have proper jurisdiction in order to entertain a petition for divorce. In Texas this means that at the time the petition is filed either spouse must have been (1) a resident of Texas for the preceding six months and (2) a resident of the county in which the petition for divorce was filed for the preceding 90 days.

Time spent stationed at a military base in Texas, including periods of deployment, count towards the six-month state and 90-day county residency requirements. In some cases a non-military spouse residing outside of Texas may be able to file for divorce in Texas based on the military spouse being stationed at a military based in Texas.

Unless the divorce is uncontested and the servicemember signs an affidavit stating that he or she is aware of the divorce proceedings, divorce papers must be served in person. The consequence of failing to serve divorce papers in person is that a the Texas court will not have jurisdiction over the servicemember and therefore be unable to adjudicate the divorce.

Division of military retirement accounts during divorce

Military retirement funds – Thrift Savings Plans (TSPs) and military pensions – may be divided during divorce. The Uniformed Services Former Spouses’ Protection Act (USFSPA) governs the division and valuation of military retirement benefits and makes clear that Texas courts have the right to order and incorporate into a final decree the division of military retirement pay as community property.

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