Military divorce in Colorado: state court, federal rules.

Where you can file: four questions, four tests.

Military families rarely live where they are from, and a Colorado court can be the right place for one part of a divorce and the wrong place for another. Four questions decide it, and each has its own test.

Stationed is not domiciled.

A Colorado court can end the marriage if either spouse has been domiciled here for ninety-one days. Presence under military orders does not count on its own; the intent to make Colorado home does.

The statute requires that “one of the parties has been domiciled in this state for ninety-one days next preceding the commencement of the proceeding” (C.R.S. § 14-10-106(1)(a)(I)). Domicile is residence plus the intent to remain. In Viernes v. District Court (1973) a husband stationed here for more than ninety days claimed Hawaii as his domicile, and his wife had never been to Colorado; presence under military orders was not domicile, and the case was stopped.

The proof is ordinary. The state of legal residence on the Leave and Earnings Statement and DD Form 2058, voter registration, a Colorado license and vehicle registration, a lease or a house, a job lined up for after the service. A spouse who is not in the military and has lived here intending to stay meets the rule on that spouse’s own domicile.

The decree and the money are different questions. Viernes also held that jurisdiction to grant a divorce does not “automatically include the right to resolve all financial issues between the parties to the marriage.” Maintenance, support and property need personal jurisdiction over the responding spouse, and military retired pay needs more.

The four tests.

Stationed is not domiciled. The divorce, the pension and the children are three jurisdiction questions, answered before anyone files.

The Servicemembers Civil Relief Act: time, not a veto.

The SCRA does not stop a military divorce. It keeps one from being decided while a member cannot be there, in custody as well as money.

Who it covers, and what it does not do.

Active-duty members of every branch, including the Space Force and the Coast Guard; Guard members on federal orders or long national-emergency duty; reservists from the day orders arrive.

The Act covers members of the Army, Navy, Air Force, Marine Corps, Space Force and Coast Guard on active duty; National Guard members on federal active duty, or on national-emergency duty under section 502(f) of Title 32 for more than thirty consecutive days; and reservists from the day they receive orders (50 U.S.C. §§ 3911, 3917). Limitation periods are tolled during service (§ 3936).

What it does not do. It is time to take part, not a veto; the Court of Appeals has said it does not prevent a judgment once the member has had notice and adequate time to defend. It also cuts both ways: a default taken against a deployed member without the affidavit invites a motion to reopen the whole decree.

The paperwork. No Colorado court form asks the question; the affidavit for a decree without appearance (JDF 1018) has no military-status statement. The usual proof is a Defense Manpower Data Center status report attached to a declaration under penalty of perjury; a false affidavit is a federal crime. Every decree dividing retired pay also needs a recital that the member’s rights under the Act were observed, or DFAS will not treat it as served (10 U.S.C. § 1408(b)(1)(D)).

The two protections, side by side.

Military retired pay: Colorado divides it, federal law decides how.

Colorado has treated military retired pay earned during the marriage as marital property since In re Marriage of Gallo, 752 P.2d 47 (Colo. 1988). The Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, decides what a court may divide and what the Defense Finance and Accounting Service (DFAS) will pay. The whole retirement estate is on Retirement Assets.

What the court may divide.

Disposable retired pay: the gross retired pay, less a short federal list of deductions. Pay waived to receive VA disability is not on the table.

A court may treat “disposable retired pay” as the member’s alone or “as property of the member and his spouse in accordance with the law of the jurisdiction of such court” (§ 1408(c)(1)). It may not order a member to apply for retirement or to retire at a particular time (§ 1408(c)(3)).

Disposable retired pay is total monthly retired pay less overpayments and recoupments; court-martial forfeitures and retired pay waived as required by law to receive compensation under Title 5 or Title 38, which is where a VA disability waiver comes off; chapter 61 disability pay computed on the disability percentage; and the premium for survivor coverage of the spouse or former spouse who receives a share (§ 1408(a)(4)(A)). For disability retirement, any excess over the disability-percentage amount is divisible where the member was already eligible to retire (In re Marriage of Poland, 264 P.3d 647 (Colo. App. 2011)).

Separation pay is property too: special separation benefits (In re Marriage of Heupel, 936 P.2d 561 (Colo. 1997)) and the voluntary separation incentive (In re Marriage of Shevlin, 903 P.2d 1227 (Colo. App. 1995)).

The frozen-benefit rule, in the statute’s words.

For a decree that becomes final before the member retires, Congress fixed the divisible pay at the member’s pay base and service on the decree date. Enacted December 23, 2016 and rewritten a year later, effective from the same date, the rule governs any division that becomes final after December 23, 2016. As it reads now:

“… in the case of a division of property as part of a final decree of divorce, dissolution, annulment, or legal separation that becomes final prior to the date of a member’s retirement, the total monthly retired pay to which the member is entitled shall be— (i) … the amount of retired pay to which the member would have been entitled using the member’s retired pay base and years of service on the date of the decree of divorce, dissolution, annulment, or legal separation, as computed under section 1406 or 1407 of this title, whichever is applicable, increased by the sum of the cost-of-living adjustments that— (I) would have occurred under section 1401a(b) of this title between the date of the decree … and the time of the member’s retirement …; and (II) occur under 1401a of this title after the member’s retirement …”

10 U.S.C. § 1408(a)(4)(B)(i)

For Guard and Reserve retirement under chapter 1223 the same rule runs on retirement points (§ 1408(a)(4)(B)(ii)). In plain terms: promotions and years served after the divorce belong to the member, and the former spouse’s share grows only by cost-of-living adjustments. A decree of legal separation triggers the rule too. DFAS’s web summary still paraphrases the superseded 2016 wording; the order follows the statute.

The payment rules.

The VA waiver: Mansell, Howell and Tozer.

Retired pay waived to receive VA disability compensation cannot be divided (Mansell v. Mansell, 490 U.S. 581 (1989)), and “a state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits” (Howell v. Howell, 581 U.S. 214 (2017)). The Court of Appeals applied it in In re Marriage of Tozer, 2017 COA 151: orders “crafted under a state court’s equitable authority to account for the portion of retirement pay lost due to a veteran’s post-decree election of disability benefits are preempted,” and Howell “effectively overruled” the earlier Colorado decisions allowing indemnification.

What a court can still do. Howell itself said a family court “remains free to take account of the contingency that some military retirement pay might be waived, or … take account of reductions in value when it calculates or recalculates the need for spousal support.” Maintenance counts “income from any source” (C.R.S. § 14-10-114(8)(c)(I)), and the Court of Appeals has treated nontaxable veterans’ disability benefits as gross income for child support. What is not settled: whether an agreed clause promising to make up a later waiver survives Howell. I know of no published Colorado appellate decision on it, and I do not promise a client that one works.

The order has to be one the government will pay. Most military divorce mistakes are drafting mistakes, found years later.

The Survivor Benefit Plan: one year, and no second chance.

Retired pay stops when the member dies, and the former spouse’s share stops with it. The Survivor Benefit Plan turns that share into an annuity for the former spouse’s life, and it is lost more often by a missed deadline than by a ruling.

1. The decree
   Require former-spouse coverage.

   “A court order may require a person to elect … to provide an annuity to a former spouse” (10 U.S.C. § 1450(f)(4)). The decree requires it and says who bears the premium, which comes off gross pay before disposable retired pay is computed. Without the order, nothing below works.

2. Within one year of the decree
   The member’s election.

   The election “must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment” (§ 1448(b)(3)(A)(iii)).

3. Within one year of the order
   The former spouse’s deemed election.

   If the member fails or refuses, the election is deemed made when the service receives the former spouse’s written request and a copy of the order, but not “unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved” (§ 1450(f)(3)(C)).

4. After that
   Fixed, unless a court changes it.

   An election cannot be changed without a new court order (§ 1450(f)(2)). A former spouse who learns in the thirteenth month that no one filed has usually lost the coverage. Send the request within weeks, by a method that proves receipt.

TRICARE, the commissary, the Thrift Savings Plan and the GI Bill.

These benefits are set by federal statute and turn on dates the spouses sometimes control. Near a tenth or twentieth anniversary, the timing of the decree is a legitimate subject of negotiation.

BAH, BAS and support: the allowances are income.

Child support and maintenance are Colorado questions, answered with the member’s whole pay. Until a court enters an order, each service has its own interim rule.

The child support statute counts “expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business if they are significant and reduce personal living expenses” (C.R.S. § 14-10-115(5)(a)(I)(X)), and the maintenance statute has the same provision (C.R.S. § 14-10-114(8)(c)(I)(X)). The Court of Appeals held in In re Marriage of Long, 921 P.2d 67 (Colo. App. 1996), that the quarters allowance, the predecessor of the housing allowance, is income for child support, and in In re Parental Responsibilities of L.K.Y., 2013 COA 108, that the housing and food allowances (BAH and BAS) are gross income under the statute’s plain language. The sworn financial statement has no line for them; they are listed as income, proved by the Leave and Earnings Statement. The guideline: Child Support.

The services’ interim rules.

Deployment and custody: Colorado’s deployed-parents act.

Colorado adopted the Uniform Deployed Parents Custody and Visitation Act in 2013, replacing its old deployment statute. A deployment is a movement or mobilization for more than ninety days but less than eighteen months under orders that are unaccompanied, do not authorize dependent travel, or otherwise do not let the family follow (C.R.S. § 14-13.7-102(8)). The National Guard of a state is covered.

The rules that protect the deploying parent.

Deployment alone cannot decide best interests, and no permanent custody order can be entered during a deployment without the deploying parent’s consent.

“In a proceeding for custodial responsibility of a child of a service member, a parent’s past deployment or possible future deployment in itself may not serve as the sole basis in determining the best interest of the child” (C.R.S. § 14-13.7-107). During a deployment the court may enter an interim order but “may not issue a permanent order granting custodial responsibility without the consent of the deploying parent” (C.R.S. § 14-13.7-302(1)). Federal law adds that a temporary order based solely on a deployment expires no later than the deployment justifies, and applies any higher state standard (50 U.S.C. § 3938).

Notice and a plan. With a custody order in place, the deploying parent must notify the other parent in a record “not later than twelve calendar days after receiving deployment orders,” unless the circumstances of service prevent it, and each parent provides a plan for the deployment (C.R.S. § 14-13.7-105). If an order bars disclosing the other parent’s address, notice goes to the court.

An interim order, quickly. A motion filed before departure gets an expedited hearing, with electronic testimony. A prior order on custody during deployment binds the court unless the modification standards are met, and a prior written agreement is enforced unless contrary to the child’s best interest (C.R.S. § 14-13.7-305).

Delegating the time. On the deploying parent’s motion the court may give caretaking authority to an adult family member, or an adult who has had physical care of the child for more than 182 days, limited to the deploying parent’s own time unless the other parent agrees (C.R.S. § 14-13.7-306). A power of attorney works only if no other parent has custodial responsibility or an order bars contact with the other parent (C.R.S. § 14-13.7-204).

The return. The court “shall immediately issue an interim order granting the deploying parent reasonable contact with the child consistent with the deployed parent’s post deployment leave” (C.R.S. § 14-13.7-403), and absent an agreement the interim order ends thirty-five days after notice of return (C.R.S. § 14-13.7-404). Keeping the interim arrangement is an ordinary modification (Modifying Custody); a permanent change of station that moves the child is a relocation.

The family care plan is not a custody order. Department of Defense Instruction 1342.19 requires one from single parents, dual-military couples with dependents, and members with custody of a child whose other parent is not the current spouse. It tells commanders to “[i]nform Members of the overriding authority of State courts to determine child custody arrangements, notwithstanding a family care plan,” and warns that leaving the other parent out can “undermine, or even render useless, the family care plan.” The plan and the parenting plan are written to match.

When there is abuse: military and civilian orders.

Abuse in a military family runs through the command and the civilian courts at once. Since August 12, 2026 Colorado law connects them.

Six things people get wrong.

The military divorce questions I am asked first.

Related: Retirement Assets  ·  QDROs & Retirement Division  ·  Modifying Custody  ·  Interstate & International Custody  ·  Domestic Violence & Divorce