Military Divorce in Virginia
Northern Virginia is home to many military service members and their families.
Unfortunately, many military marriages end in divorce. There are numerous
legal issues that must be addressed as well as many different difficult
decisions that must be made in conjunction with
divorce. When one or both spouses are service members, there is an added layer
of complication. You may be surprised to learn that military divorce differs
in many respects from a civilian divorce. Before you begin the process
of obtaining a divorce, it is critical that you understand the differences
between military divorce and civilian divorce. The most critical decision
you'll make is choosing an attorney with a proven track record in
military divorce law. Federal law regarding division of military retirement
pay was significantly altered in December 2016. ShounBach attorneys can
help you understand how these new chances will alter the division of these benefits.
If you're confused about the many laws that affect military divorces,
you're not alone. Even attorneys and judges often believe that the
only unique issue is division of military retired or retainer pay. Nothing
could be further than the truth. While division of military retired pay
is a complex and important issue, there are other issues that must be
carefully considered and addressed: the military spouse's continuing
eligibility for commissary, exchange and health care benefits.
Military Divorce v. Civilian Divorce
Military divorces are governed by two sets of laws, Federal and state law.
Federal law will affect certain issues, for instance, pension division
and stays, and state law affects certain other issues, for instance, property
division, custody and visitation and support and maintenance.
Two Federal laws that are relevant to military divorces are the Servicemembers
Civil Relief Act of 2003 (SCRA) and the Uniformed Services Former Spouses
Protection Act (USFSPA). Certain Federal rules and regulations are also
applicable to military divorces.
The SCRA allows servicemembers to stay court hearings as well as administrative
hearings if military service materially affects servicemembers' ability
to defend their interests. The SCRA requires a court or administrative
body to grant at least a 90-day stay if requested by the servicemember.
Additional stays can be granted at the discretion of the judge or hearing official.
Unfortunately, there can be many different issues that must be addressed
when a service member and his or her spouse decide to file for divorce.
In order to address and resolve these issues, it is important to understand
the protection under the Uniformed Services Former Spouse Protection Act
(USFSPA). The USFSPA benefits military members specifically because it
does not automatically allow for a former spouse to take some of the member's
retired pay. Instead, the USFSPA permits a state to treat military disposable
retired pay as marital property. Disposable military retired pay is calculated
based on a service member's monthly retired pay minus qualified deductions
and because of the USFSPA, this military disposable retired pay will be
divided in a divorce action.
Military Retired Pay After Divorce
Many military members also wonder what happens to their military retired
pay during the property division process. State courts are allowed to
treat military retired pay in the same way as a civilian pension plan,
which is available for federal employees. Retired pay may be divided for
property settlement purposes, and may also be garnished to satisfy child
support and alimony obligations to the non-military spouse. Virginia law
will determine whether military retired pay will be treated as marital
property and how this pay will be divided between the two parties upon
divorce. Military couples living in Virginia must keep in mind that the
retired pay has a chance of being considered marital property. New federal
law significantly alters how retired pay is divided.
Retired service members are also part of a Survivor Benefit Plan (SBP),
which allows them to provide continued income to a named beneficiary in
the event of the retiree's death. The USFSPA allows for a current
or former spouse to be designated as this beneficiary, and sometimes the
court can even order a military member to do so. The SBP was created to
help make up for the loss of part of this income and it pays eligible
designated survivors, such as a former spouse, an inflation-adjusted monthly income.
In certain circumstances, former spouses can continue receiving commissary,
exchange, and health care benefits after a divorce. In order to qualify
for continued benefits, a former spouse must meet the 20/20/20 requirement:
first, they must show that the service member served at least 20 years
of creditable service; second, they must show that the marriage lasted
at least 20 years; and third, that the period of the marriage overlapped
the period of service by at least 20 years. If the former spouse does
not meet these requirements given by law, they will lose their commissary
and exchange privileges after the divorce is final.
Military regulations require single parents and military-married-to-military
couples with children (often referred to as dual military families) to
have plans concerning the care of their dependent children in the event
they are deployed. These are called Family Care Plans. Upon separation
or divorce, a military member with a child or children becomes a single
parent and therefore must have a family care plan.
Experienced Help for Your Military Divorce
The details of a military divorce will change based upon what state you
reside in as well as the unique facts and circumstances of your marriage.
If you have questions regarding separation or
divorce, please talk to a Northern Virginia divorce lawyer from our team at ShounBach.
We have the experience to guide you through your military divorce.