While divorce can be a grueling experience in the best of situations, military divorces are particularly complex, considering the interplay of both state and Federal laws that are involved.
If you or your spouse is a military service member, navigating a military divorce can be especially challenging, particularly if one of you is based elsewhere. At Melone Hatley, P.C., our skilled team of Reston, Virginia military divorce attorneys can guide you through the process, ensuring your emotional and financial future and protecting your legal rights.
State Residency Requirements and Legal Jurisdiction
While state law governs most divorces, military divorces are governed by both state and Ffederal laws, protecting the rights of military service members. These laws are designed to address the specific needs of military service members and their families.
Before filing for divorce in Virginia, at least one spouse must meet state residency requirements to establish jurisdiction over the proceeding. For the state to have legal jurisdiction in a military divorce, a couple must fit one of the following:
- The service member and/or their spouse have been residents of Virginia for at least six months.
- The service member is stationed in Virginia.
- The service member considers Virginia their domicile or permanent home.
While state law typically requires at least one spouse to be a resident of Virginia for at least six months before filing for divorce, military members stationed in the state – no matter how long the member is stationed there– are considered residents for purposes of filing for divorce, even if their home of record is elsewhere.
Grounds for Divorce in a Military Divorce
The grounds for divorce in a military divorce follow the same laws as civilian divorces and are regulated by the state. Virginia recognizes both no-fault and fault-based divorce grounds.
No-Fault Divorce
The only grounds for filing for a no-fault divorce in Virginia is a period of separation. The couple must be living separate and apart from each other for a specified period of time. For couples with children, this is one year. For those without children in common, the separation requirement can be reduced to six months, provided they have entered a written separation agreement.
Fault-Based Divorce
Pursuing a divorce using fault-based grounds requires proof that marital misconduct led to the dissolution of the marriage. Fault-based grounds recognized in Virginia include:
- Adultery
- Cruelty
- Abandonment
- Felony conviction with at least one year of incarceration
Like civilian divorces, there must be considerable evidence of marital misconduct to be successful in a fault-based divorce. It will be important to consult with a family law attorney to understand no-fault and fault-based divorce and what will best suit your goals and circumstances.
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Legal Protections for Active-Duty Service Members Navigating Divorce or Other Legal Proceedings
The Servicemembers Civil Relief Act (SCRA) provides active-duty service members with certain protections if they are involved in legal proceedings, such as a divorce. Protections under the SCRA ensure they cannot be unfairly disadvantaged if they cannot be actively involved because of their service obligations. This protection is crucial for service members who may be stationed overseas or in other service capacities. Making it impossible to engage in legal proceedings.
The SCRA protects service members from default judgments in divorce or custody cases when the service member cannot appear due to their military obligations. The service member can request a stay or temporary delay of proceedings that pause the proceedings for 90 days with the ability to extend that pause. In addition, service members who are parents navigating custody cases can also postpone hearings if they are unable to be present because of their military duties.
Marital Property Division in a Military Divorce
Virginia state law permits divorcing couples to divide their marital assets and debts equitably. Marital property is anything the couple acquired while married, including income, property, investments, retirement accounts, and debts, although there are exceptions. However, Federal law interjects some nuances into marital property division in a military divorce.
Division of Military Benefits
One of the more complex aspects of a military divorce is how military benefits are divided between the service member and their spouse. These include retirement pay, healthcare, and other military entitlements.
Military Pensions
A service member’s military pension is a significant asset during property division in a military divorce.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) dictates how this pension can be divided in a divorce setting. Under the USFSPA, a military spouse’s share will be calculated based on:
- The number of years the couple was married and
- The length of the service member’s military service.
Furthermore, unlike a civilian divorce, these retirement benefits are handled through the Federal government. The Defense Finance and Accounting Service (DFAS) only remits these payments directly to the former spouse if ten years of military service overlapped with ten years of their marriage, called the 10/10 rule. In the event the 10/10 rule does not apply, the service member will be responsible for making these payments directly to the former spouse.
What About Military Disability Benefits?
Military disability benefits are separate from a military pension. These are intended to compensate and provide support for the service member for medical injuries or conditions resulting from their military service. Consequently, military disability benefits are not considered divisible marital property in a divorce. However, disability benefits may be considered income for purposes of calculating child and spousal support.
The Survivor Benefit Plan (SBP)
The Survivor Benefit Plan (SBP) can provide ongoing income to a former spouse when the service member passes away. However, it must be elected at the time of the divorce and must be addressed at that time.
Former Spouse’s Healthcare Benefits
Depending on the length of the military service and the duration of the marriage, former military spouses may also be eligible for continued healthcare under the TRICARE system.
- The 20/20/20 rule
A former military spouse will be entitled to a lifetime of healthcare benefits if the couple was married for at least 20 years, the service member served for at least 20 years, and there was a 20-year overlap of service and marriage. - The 20/20/15 rule
A former military spouse will be entitled to one year of healthcare benefits after the divorce if the couple was married for at least 20 years, the service member served for at least 20 years, and there was a 15-year overlap of service and marriage. - The Continued Health Care Benefit Program
If a former military spouse does not qualify for healthcare under those two rules, they lose coverage under TRICARE. However, they may be eligible for temporary coverage under the Continued Health Care Benefit Program.
Other Considerations in Property Division in a Military Divorce
Military divorces also offer other key benefits and challenges for former spouses:
- Thrift Savings Plan
The Thrift Savings Plan (TSP), a retirement savings plan for service members and other Federal employees, can be considered marital property subject to division in a divorce. However, it will require a Retirement Benefits Court Order (RBCO) issued by the court. - Housing allowances and on-base housing
Military housing allowances are considered when determining property division and spousal support. Other housing decisions will need to be made since a former military spouse must vacate military housing within a specific time after the divorce. - Commissary and base privileges
The 20/20/20 and 20/20/15 rules also allow a former military spouse to continue base and commissary privileges if they are negotiated as part of the settlement process. - Overseas property
Military families sometimes acquire property overseas during their marriage. In these cases, determining the value and legal ownership under foreign law can further complicate marital property division. - Relocation and moving costs
Frequent relocations and deployments can result in more complications when considering the costs and logistics of moving across state or national borders.
How is Child Custody Handled in a Military Divorce?
Military deployments often require a service member to be away for prolonged periods, impacting custody arrangements. The Servicemembers Civil Relief Act allows a service member to request a stay of custody proceedings, ensuring their custody rights are not compromised because of their absence.
Virginia courts prioritize the best interests of the child in any custody determination. The court will use factors such as:
- The emotional and physical health of both parents
- The level of each parent’s involvement in the child’s life and their ability to provide a stable environment
- The child’s relationship with each parent
- The willingness of each parent to encourage a relationship between the child and the other parent
- How the arrangement may affect the child’s current living situation, education, and social connections
- The existence and quality of a family care plan, which outlines who will care for the child during deployments or extended absences
For military families, the best interests of the child will need to consider the service member’s deployment schedule and the potential for frequent moves. If deployment significantly disrupts the child’s routine and stability, the court may grant temporary full custody to the non-military parent, which will revert to a shared custody arrangement upon the service member’s return, or allow the service member to delegate their custodial or visitation rights to another family member in their absence.
How is Child Support Handled in a Military Divorce?
Child support in Virginia uses guidelines that consider both parents’ incomes, including military pay and allowances. The following will need to be considered when calculating child support in a military divorce:
- Basic pay and allowances like Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS)
- Special and incentive pay
- Military retirement pensions
- Veteran’s disability compensation
- Temporary duty pay or other deployment-related allowances
- Healthcare and childcare costs
- Shared custody arrangements
- Other extraordinary expenses, such as medical treatments and special education needs
If a service member voluntarily reduces their income or rank to lower their child support obligations, the court may impute their income based on their earning capacity instead.
How is Spousal Support Handled in a Military Divorce?
Like a civilian divorce, the court may award spousal support when one spouse has been financially dependent on the other. Factors the court will consider include the length of the marriage, both spouses’ incomes and financial needs, and contributions each has made to the household, both economic and non-economic. In addition, the court may also consider factors such as the impact of military life on the non-military spouse, including relocations and interruptions to their career.
The court can consider basic military pay, allowances, BAH, BAS, special pay and bonuses, disability compensation, and retirement pay when making spousal support determinations. The USFSPA dictates how military pensions are considered in spousal support decisions.
Retaining an Experienced Military Divorce Attorney in Reston, Virginia
Military divorces can be particularly challenging, considering the unique interplay of both state and Federal laws. From jurisdiction nuances to legal protections for service members to the division of military benefits, navigating a military divorce will require a thorough understanding of both Virginia and military laws.
At Melone Hatley, P.C., our experienced Reston, Virginia military divorce attorneys are here to advocate for your rights and skillfully guide you through the process. We pride ourselves on being compassionate allies for our clients during life’s most challenging times. If you are navigating a military divorce or custody dispute, call us at (703) 995 – 9900 or contact us online to schedule time with one of our client services coordinators.
