Whether your case is contested or uncontested, if you, or your spouse, is in the military, it can create unique challenges. From jurisdiction to deployment to child custody determinations, these cases have more moving parts than most. As a result, it is important that any military family facing divorce has the knowledge and insight of an experienced Virginia divorce lawyer.
Military divorces require specific knowledge of the protections for active-duty armed forces personnel. The differences between military law and civilian law as they relate to issues of alimony, child support, child custody, and the division of marital property, including military pensions, retirement benefits, and the survivor benefit plan can be complicated. If you are a service member facing a Virginia military divorce, the experienced military divorce attorneys at Melone Hatley, P.C. may be able to help.
What Are the Residency Requirements for a Military Divorce in Virginia?
For any divorce case in Virginia, one party must have been a resident for at least 6 months prior to filing the case. However, this requirement only grants the spouse the right to a divorce. Jurisdiction over child custody and property division may be held by another state.
For military members, jurisdiction may be proper where they currently reside, where their spouse currently resides, where they are stationed, where they last resided in the United States if serving overseas, or their designated home state. If the other spouse has no connection to Virginia, the court may not have jurisdiction to determine any property or support issues between the parties even though a divorce could be granted. A knowledgeable Virginia family lawyer can advise you on where jurisdiction is proper, and best, for your case.
What is the Difference Between a Civilian Divorce and a Military Divorce in Virginia?
Military divorce cases are subject to special federal laws and regulations beyond those that regulate normal divorce. Specific divorce laws for military members include the Uniformed Services Former Spouses Protection Act (USFSPA) and the Servicemembers Civil Relief Act (SCRA). These laws are in place to protect military service members, military families, and nonmilitary spouses in terms of available military benefits.
The USFSPA provides a portion of the military member’s retirement pay, health care, and exchange benefits after a divorce. The SCRA, on the other hand, protects members of the military in legal matters such as the divorce process, evictions, foreclosures, divorce and custody determinations, and default judgments while they are on active duty.
Under current laws, child support and spousal support together cannot exceed 60% of the military service member’s gross pay and allowances. It is important to have a military divorce lawyer in your corner to help you avoid unfair obligations in this area.
Retirement is also an important issue in military divorce. As soon as you marry, your spouse is entitled to part of your civilian and military retirement earnings from after the date of marriage. This means all retirement plans including TSP (Thrift Savings Plan), FERS (Federal Employees Retirement System), and military pensions as well as civilian plans such as IRAs. Their marital share of pension is calculated based on your length of service and the length of the marriage. If the marriage was long enough, payments are issued through the Defense Finance and Accounting Service. What many service members do not realize is that you can negotiate the amount of military retired pay your spouse can access during the divorce proceedings.
These issues are complex, and if you are dealing with a military divorce, it is vital to have a Virginia law firm with years of experience in your corner to help you get a fair and equitable split of finances and property. Melone Hatley is ready to listen, provide legal advice, and stand up for your rights under military and family law.
Uniformed Services Former Spouses Protection Act (USFSPA)
The USFSPA allows former military spouses to receive a portion of retirement pay as well as commissary, exchange, and health care benefits following divorce.
Servicemembers Civil Relief Act
The SCRA offers protection for servicemembers from default judgments, evictions, and foreclosures in addition to divorce and custody determinations while on active duty.
Virginia Military Equal Protection Act
As discussed here, Virginia also offers additional protection for service members in the Virginia Military Parents Equal Protection Act, which addresses the concerns of deploying parents regarding custodial and visitation decisions.
Jurisdiction over child custody may also be an issue. Just because Virginia has jurisdiction over the divorce does not mean it has jurisdiction to make a custody determination. Custody jurisdiction stays in the place where the child has resided most of the time (their “home state”), which may be another state or even another country.
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Do Members of the Military Need to Show Up in Court for Their Divorce?
Military members do have to appear in court, but they have some options. The service member and their spouse can file for divorce in the state where the spouse resides, the state where the service member is currently stationed, or the state where the military member legally resides. The law, however, seeks to avoid placing service members under undue burdens while working to defend our country.
Under the SCRA, service members have protection against default judgments in their court proceedings — that is, judgments issued without them present in court. Service members under this act can request a “stay” or temporary halt of civil actions initiated against them if they are on active duty or are within 90 days of release from active duty. They may also petition for a stay beyond the 90-day period, but the court determines whether such an additional extension is warranted.
What is a Military Spouse Entitled to in a Divorce?
After you are married, your spouse is entitled to a portion of your retirement contributions and entitlements made any time after marriage. This includes pension, TSP, FERS, and any other retirement plan you may participate in, such as a Roth IRA. Your spouse’s share of a pension is calculated as a fraction depending on the length of the marriage and length of service.
If you are negotiating an agreement, you can modify the amount your spouse can take from these accounts. For your spouse to actually receive their portion of your retirement, the court will require an additional order, known as a Qualified Domestic Relations Order. If these orders are not prepared properly, the distribution will not be done.
Both child support and spousal support cannot exceed 60% of a military member’s gross pay and allowances. While ordinarily the child support guidelines applied in Virginia would not exceed this limit, it is possible a spousal support award could.
It is vital that military members understand their rights so they are not burdened with obligations they cannot meet due to a divorce.
Is Military Disability Pay Considered Marital Property?
Under federal law, disability benefits from the VA are not considered marital property. This means they are not part of equitable division in your case. They are, however, considered income, which means they can be considered when calculating issues such as child support or spousal support.
What Other Assets Are Marital Property in a Military Divorce?
As with most divorces, any property or assets gained by the couple after marriage are considered property. A military pension is often the most contentious aspect of property division, but under Virginia state law, other assets can include a house, cars, civilian retirement benefits, and any other valuable assets that the couple gained together. Exceptions to this include gifts from one spouse to another or an inheritance passed to one specific spouse from a decedent.
How Does Deployment Affect My Child Custody and Visitation Rights?
The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) protects you from losing custody or contact with your child while you are deployed. It states that deployment cannot be the sole basis for determining the best interests of the child. If you are deployed, you can request custody. If it is granted, it will allow the children to stay with your ex-spouse or other relatives while you are deployed. If your ex-spouse attempts to override your parental rights, you can request a hearing. The Melone Hatley law office is ready to help you defend your parental rights.
You Fought for Our Country. We Will Fight for You
If you are facing a military divorce, you do not have to go it alone. Melone Hatley, P.C. is here to stand up for your rights. We have offices in Virginia that serve both the northern Virginia and Hampton Roads areas. If you reside in or near Chesapeake, Fairfax, Loudoun, Reston, Richmond, Virginia Beach, Norfolk, Portsmouth, or Newport News, we can help you.
We value every client relationship and seek to be a dependable, compassionate ally in these difficult times.
