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Whether your case is contested or uncontested, military divorces offer unique challenges. From jurisdiction to deployment to child custody determinations, these cases have more moving parts than most. As a result, it’s important that any military family facing divorce has the knowledge and insight of an experienced family law attorney.
For any divorce case in Virginia, one party has to 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, and 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, or where they last resided in the United States if serving overseas. 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.
For military members, jurisdiction may be proper where they currently reside, where their spouse currently resides, where they are stationed, or where they last resided in the United States if serving overseas. A knowledgeable family law attorney can advise you on where jurisdiction is proper for your case.
The Uniformed Services Former Spouses Protection Act (USFSPA) and the Servicemembers Civil Relief Act (SCRA) are the two most impactful federal laws on military divorce. The USFSPA allows former military spouses to receive a portion of retirement pay as well as commissary, exchange, and health care benefits following divorce.
The SCRA offers protection for servicemembers from default judgments, evictions, and foreclosures in addition to divorce and custody determinations while on active duty.
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.
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 will not exceed this limit, it’s possible a spousal support award could.
It’s vital that military members understand their rights so they are not burdened with obligations they cannot meet as a result of 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.
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