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How Does Serving In The Armed Forces Affect Divorce In Texas?

Updated: Jul 16, 2023

If you or your spouse are serving in the armed forces, or if either of you served in the military in the past, there are some special considerations to take into account when going through a divorce in Texas.

Picture of an American flag patch on a soldiers uniform.

Active Duty Considerations

For a married couple with one or both spouses serving in the military, divorce proceedings are very similar to the civilian divorce process if both parties are not currently deployed. The primary difference between a civilian divorce and a military divorce comes into play when a spouse is deployed. A deployed individual must be served divorce papers in person. If you are a non-deployed individual who is seeking a divorce, depending on where your spouse is deployed, serving your spouse may be a very difficult task. You or your attorney will either have to contract a professional process server in the deployed spouses location, or wait for the spouse to return from deployment. If both parties agree that a divorce is necessary, the serving of papers can be waived by the deployed individual by having the deployed person sign a Waiver of Service.

When served while on deployment, an active duty service member can postpone divorce proceedings up to 90 days after a deployment ends. After this period of time, the case will proceed regardless of the situation. It is not mandatory that a deployed individual wait until 90 days after returning home, they can elect to proceed at any time if they agree that a divorce is necessary.

Another consideration, if you have children, is what will happen to your child possession and access schedule when you or your spouse are deployed. A deployed individual is still entitled to their possession and access and can elect a grandparent or other qualified guardian to take possession of any children when the deployed individual would normally have visitation with the children. However, this is not a requirement. The deployed individual can also agree to forfeit their possession and access while deployed, if this is a better option for the children. Though some special considerations must be taken into account for possession and access, ultimately the rules are the same as they are for non-military couples. The divorcing couple can come to any agreement they see fit, as long as both parties agree.

Eligibility Considerations

In the state of Texas, there are a few requirements for a civilian to get divorced. The same rules apply to Military personnel, but there are some additional ways to meet eligibility requirements that are not available to civilians. Meeting any of the following will make you eligible to divorce in Texas.

  • One spouse has lived in Texas for 6 months or more

  • Either spouse has permanent residency in Texas while stationed outside of Texas

  • Either spouse is temporarily stationed in the state of Texas

  • Either spouse was deployed while stationed in Texas

Asset Considerations

Texas is a community property state. The same rules that apply to civilians also apply to military families divorcing in Texas. Any money earned, debts accumulated, or assets purchased during the marriage should be divided evenly. The only exception to this is how military retirement pay and military medical benefits are divided.

Regarding military retirement pay, if the couple was married for 10 years, and one partner served in the armed forces for the full duration of those 10 years, the non-serving spouse may be entitled to receive a portion of the serving party's retirement pay.

The same is true for non-military spouses that rely on military health care insurance benefits, but the timing requirements differ. In order to be eligible to receive military health care benefits, the non-serving spouse must have been married to the serving spouse for a minimum of 20 years, during which the serving spouse was enlisted for at least 15 of those years. This results in one year of military health care coverage post divorce. If the non-serving spouse was married to the serving spouse for 20 years, and the serving spouse was enlisted for that 20 year period, there is no time limitation for the non-serving spouse to receive the military health care benefits.

While an attorney is not required for divorcing couples who are currently serving or have served in the military, it would be a wise choice to seek out an attorney with experience in military divorce. This is especially true for marriages lasting at least 10 years during which either spouse was enlisted for 10 of those years. The non-serving spouse is likely to be entitled to military benefits post divorce in these cases, and an attorney can help ensure that these assets are divided fairly.

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