Military Divorce
Does Military Deployment Count Toward Separation in San Antonio, TX?
San Antonio is home to one of the largest military populations in the country. Joint Base San Antonio spans Lackland, Randolph, and Fort Sam Houston, and thousands of military families in the area live with deployment cycles that keep spouses apart for months at a time. When one of those marriages ends, a question comes up again and again: does the time spent deployed count toward a separation requirement for divorce?
The short answer is that Texas does not require spouses to separate before filing for divorce, so in most San Antonio cases there is no separation period for deployment to count toward. Deployment time does count toward the residency requirements for filing, and it affects how a military divorce proceeds in other ways worth understanding before you file.
Considering divorce while you or your spouse serves? The family law team at Melone Hatley, P.C. helps service members and military spouses in San Antonio file for divorce, protect their benefits, and build parenting plans that account for deployment. Schedule a consultation to talk through your options. You can also reach our San Antonio office at (210) 688-8550.
Does Texas Require Separation Before You Can Divorce?
Most Texas divorces are granted on the ground of insupportability, the state’s no-fault option. Insupportability means the marriage has become unsupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation. Neither spouse has to prove fault, and neither has to show they lived apart for any length of time. Spouses can file while still living under the same roof.
This surprises many military families who came to San Antonio from states that do require separation before a no-fault divorce. If you or your spouse previously lived in a state with a mandatory separation period, set that framework aside. In Texas, the question of whether deployment counts toward separation almost never arises, because no separation is required in the first place.
When Does Living Apart Matter in a Texas Divorce?
Texas law includes one divorce ground tied to separation. Under Texas Family Code Section 6.006, a court may grant a divorce if the spouses have lived apart without cohabitation for at least three years.
Deployment alone generally will not satisfy this ground. The three-year period is meant to show that the marriage itself ended years ago, and courts look at why the spouses were apart. Time apart under military orders, during which the spouses stayed in contact, shared finances, and continued the relationship, does not establish that the marriage dissolved when the deployment began. A service member who spent eighteen months overseas while exchanging calls and letters with a spouse at home was absent on duty, and that absence will not be treated the same way as a separation the spouses chose.
This ground sees little use in San Antonio courts for a simple reason. Insupportability requires no waiting period beyond the standard 60 days, no proof of fault, and no evidence about the separation. A couple that has lived apart through multiple deployments can file on insupportability today and skip the three-year question entirely.
What Does Deployment Count Toward in a San Antonio Divorce?
Deployment time counts toward the residency requirements for filing.
To file for divorce in Bexar County, at least one spouse must have lived in Texas for the six months before filing and in the county for the preceding 90 days. Two statutes adapt this rule for military families:
- Texas Family Code Section 6.303. Time a Texas domiciliary spends outside the state or county while serving in the armed forces counts as residence in Texas and in their home county. A service member from San Antonio who spent the past year deployed overseas can still file here, and the same rule applies to a spouse who accompanied the service member on military orders.
- Texas Family Code Section 6.304. Service members stationed at a Texas installation, including Joint Base San Antonio, for at least six months, and at an installation in a particular county for at least 90 days, are treated as Texas residents for divorce purposes even if their legal domicile is another state.
Deployment never costs a military family the ability to file in San Antonio. For service members and spouses tied to the area, time away on orders keeps the residency clock running as if they never left.
Can a Divorce Move Forward During Deployment?
It can, and in cooperative cases it often does. The 60-day waiting period under Texas Family Code Section 6.702 applies to military and civilian divorces alike, and an agreed divorce can finalize shortly after that period ends even when one spouse is overseas. A deployed spouse can sign a waiver of service and an agreed final decree from anywhere in the world, and courts can permit remote participation in hearings.
Deployed service members also have protection when they need it. The federal Servicemembers Civil Relief Act allows a court to pause divorce proceedings while a service member is on active duty and for a period afterward, so a spouse at home cannot push a divorce through while the other spouse is unable to participate. A deployed service member who wants the divorce to proceed can waive that protection in writing and keep the case on schedule.
How Does Deployment Affect Property Division?
Since Texas has no legal separation, the community estate continues to grow during any period the spouses live apart, including deployment. Base pay, housing and subsistence allowances, special pays, and bonuses earned during a deployment remain community property until the divorce is final. Retirement benefits that accrue during the marriage are community property as well, and that includes service credit earned while deployed.
Spouses who have lived apart for years sometimes assume that whatever each person earned after the split belongs to that person alone. In Texas, that assumption is wrong. Everything earned up to the date of divorce is presumed community property, no matter how long the spouses have lived apart or how many deployments came and went in between. This is one more reason filing sooner often makes more sense for military families than waiting out a separation that has no legal effect.
Military retirement adds a federal layer. Under the Uniformed Services Former Spouses’ Protection Act, the portion of retired pay earned during the marriage can be divided in a Texas divorce, and when the marriage overlapped at least 10 years of creditable service, the Defense Finance and Accounting Service can pay the former spouse’s share directly.
How Does Deployment Affect Custody and Parenting Time?
Texas law protects deployed parents. Courts cannot hold a deployment, or the absence it causes, against a parent when deciding conservatorship, and a parent’s military service is never a reason on its own to limit their relationship with their children.
When a deployment prevents a parent from following the possession schedule, Texas Family Code Sections 153.701 through 153.709 allow the court to issue temporary orders for the deployment period. Those orders can designate a person close to the deployed parent, such as a grandparent or stepparent, to exercise visitation while the parent is away. When the deployment ends, the original orders resume.
Parents divorcing in San Antonio can also build deployment provisions directly into the final decree, spelling out how parenting time, video calls, and make-up periods will work when future orders come through. For active-duty families at Joint Base San Antonio, those provisions keep a deployment from sending everyone back to court.
Talk to a San Antonio Military Divorce Attorney
At Melone Hatley, P.C., we help service members, military spouses, and veterans in San Antonio resolve their divorces with the protections federal and Texas law provide.
Our family law team handles the issues that set military divorces apart, including residency for deployed and relocating families, division of military retirement and benefits, the Servicemembers Civil Relief Act, and parenting plans built around deployment cycles. Whether you are stationed at Joint Base San Antonio, deployed overseas, or married to someone who is, we can help you move forward.
Schedule a consultation with our team today, or reach our San Antonio office at (210) 688-8550.
