Military divorce cases involve an intersection of complex state and federal laws, including the Survivor Benefit Program, military retirement, the Servicemembers’ Civil Relief Act, and Veterans Affairs benefits like disability pay, GI Bill and education benefits, and life insurance. Navigating a civilian divorce case can be challenging and stressful enough. When adding the complexity involved with a military divorce, the already stressful situation can make the entire process feel completely overwhelming. If one or both parties are in the military, or were previously, it is important to obtain support and advice from a lawyer who is experienced with military divorces. For the military member, it is important to provide financial support for your spouse and children during your separation and divorce and there are specific military regulations that must be complied with. If a servicemember fails to pay support, they could be subject to discipline from commanding officers including potentially being court-martialed under Uniform Code of Military Justice (UCMJ) Article 90, disobeying an office; or Article 92, failing to obey other lawful orders; or even Article 134 which involves bringing discredit upon the Armed Forces. For National Guard or Reservists, mobilization can significantly affect your income. There are several other special considerations in a military divorce when filing in Virginia.
OVERVIEW OF MILITARY DIVORCES IN VIRGINIA
Divorce cases involving at least one spouse who is, or was, in the Armed Forces presents unique challenges. For the most part, state laws govern the majority of aspects involved in the divorce process, like the determination of child custody or visitation; the legal grounds for divorce; the allocation of property, assets, and debts; and child or spousal support. In a divorce involving a current or former servicemember, certain federal laws may preempt state laws and determine how much of member’s retirement pay or other benefits may be divided. These federal laws also determine whether a supported spouse may receive payments directly from DFAS (Defense Finance and Accounting Service) or whether it must be paid directly from the member spouse. Federal rules, regulations, and case law also determine what portion of retirement and other benefits the nonmember spouse may be entitled to. Additionally, some decisions like the Survivor Benefits Program election may be irrevocable and circumstances in which you may change the coverage may be very limited. Survivor Benefits may also be lost upon remarriage before age 55 so, former spouses should consult counsel before remarriage.
With over 50 years of combined legal experience, the attorneys at Nova Legal Professionals speak your military language and jargon. We have helped numerous military families with their family law issues. Corrie Sirkin was the spouse of an active duty Navy member who was often stationed at Marine Corps bases. We are prepared to equip you with the tools and information you need to advocate for your interests in a divorce case as a military service member, or with a military spouse. When going through a divorce, Nova Legal Professionals are here to help you through the process. Consider scheduling a consultation with the firm today by calling (571) 260-0999 or completing the online contact form here.
FILING REQUIREMENTS/ JURISDICTION FOR A MILITARY DIVORCE IN VIRGINIA
Under the USFSPA found in 10 U.S.C. § 1408(c)(4), there are specific requirements that must be met to obtain jurisdiction over a servicemember. The first way is for the member to consent to the jurisdiction of the court. The other ways are for the member to be a resident of the Virginia other than because of their military assignment or for the court to find that the servicemember was domiciled in Virginia. Jurisdictional requirements may be waived if the service member takes affirmative action in the legal proceeding. There are other ways for a Virginia Court to have jurisdiction, but it will be important that you have a lawyer that understands and complies with the requirements.
SERVICEMEMBERS CIVIL RELIEF ACT AND UNIFORMED SERVICES FORMER SPOUSES PROTECTION ACT
Military divorces are subject not only to Virginia state law but also federal law including but not limited to the Servicemembers Civil Relief Act 2003 (SCRA) and the Uniformed Services Former Spouses Protection Act (USFSPA).
Under the SCRA, active duty members, reservists, and National Guardsman who are called up for service for more than 30 consecutive days may apply to stay (stop) court proceedings for at least 90 days (which may be renewed). If a civilian spouse seeks a divorce from a servicemember who is currently deployed outside of the state, the stay will be issued. This prevents a civilian spouse from being awarded a divorce against the servicemember during deployment. Once the servicemember has returned from deployment, the divorce process may continue.
USFSPA is a federal law that grants certain benefits to spouses that meet specific criteria and allows states to establishes rules to divide disposable retired pay between the servicemember and their spouse. Oftentimes, for a career servicemember, a servicemember’s retired pay may be one of the largest assets they have. In a Virginia divorce, military retired pay is considered marital property subject to equitable distribution. It is also included in child support or spousal support calculations. USFSPA also provides whether a former military spouse may continue to have health care benefits, commissary, and exchange privileges.
The 10/10 rule in military divorces is the requirement that in order for the former spouse to be paid directly from Defense Finance and Accounting Service (DFAS); the couple must have been married for at least 10 years with the military performing at least 10 years of service during the course of the marriage. This does not mean that if you do not meet these requirements; then, you may not receive part of the military retired pay. This is a common misunderstanding. This simply means that you would have to be paid directly by your former spouse or their current employment rather than directly from DFAS.
The 20/20/20 rule in military contains three components that must be met in order for the military spouse to receive the same benefits as the military member. They must have been married for at least 20 years. The military member must have served for at least twenty years and the twenty years of marriage and the twenty years of service must overlap. If these are met; then, the military spouse can receive Tricare, commissary and exchange portions, and a portion of the military retiree’s pay.
Virginia Code §20-107.3 provides that a servicemember’s pay is considered marital property when it was earned during marriage and was earned before the separation of the parties.
Calculating the Marital Share of Military Disposable Retired Pay
For all divorces after 2017, the Frozen Benefit Rule applies. The former spouse’s share of military retirement is frozen as of the date of dissolution. Their portion receives cost of living adjustments, but not post-decree promotions or longevity increases. The spouse’s share of retirement is based upon the High-3 pay of the service member at the time of the divorce. The marital share is a calculation of the number of months the couple was married during creditable service in the military divided by the months of creditable service at the time of divorce times the High-3 pay at the time of the divorce. Under this rule, the former spouse does not get the benefit of the military member’s continued service and post-divorce promotions. In this way, military retired pay is treated differently than most other federal, state, and private retired pay or pensions wherein the former spouse receives the benefit of post-divorce promotions and increases.
For persons who are already retired at the time of divorce, the calculation is the months of marriage during military service divided by the total months of military service at the time of retirement.
For current and former military members and military spouses, it is critical that your attorney be aware of the interplay between retirement pay and service-related disability pay. In the Supreme Court in Howell v. Howell, the Court ruled in the veteran’s favor that a state court may not order a veteran to indemnify a divorced spouse for the loss in retirement pay caused by his waiver to obtain service-related disability pay. However, the Court can enforce an agreement that the veteran may not reduce the spouse’s portion of retirement pay by electing disability pay. It is absolutely crucial that this issue be addressed in any military retirement Order.
CUSTODY IN A VIRGINIA MILITARY DIVORCE
In the State of Virginia, the court’s top priority in divorce cases involving small, dependent children is protecting the child’s best interests. Service members responsibilities and service to our country should not be used against them with regards to their parental rights. Servicemembers who may need to deploy, attend training sessions, move more frequently, or transfer to another state or country unlike their civilian counterparts may face special challenges in protecting their custody, visitation, and parenting time rights. Military relocation can complicate a child custody and parenting time matter. There is not a one-size fits all determination and Virginia courts have to carefully consider what is in the best interests of the child while acknowledging the rights of the parents and the importance of frequent and continuing contact with both parents. The nuances involved in your particular situation will greatly determine the outcome of your case and are pivotal in influencing the judge’s decision.
When a servicemember is getting ready to deploy, they will often create a Family Care Plan (FCP) for their children while they deploy. The non-servicemember parent is not required to sign off on the FCP and if they do not agree with the plan can file in Court In Virginia Code 20-124.7 through 20-124.10, deals with deploying parents or guardians which the act specifically defines as compliance with military orders received by a member of the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof to report for combat operations or other active service which the deploying parent or guardian is required to report unaccompanied. The Court may make temporary orders based upon the deployment including delegation of visitation to a family member including stepparent, but usually the other parent has parenting time during the deployment in absence of a court decision otherwise. Often, a temporary order may terminate by operation of law upon the return of the deploying parent with written notice to the other parent. During the deployment, the nondeploying parent shall accommodate any leave schedule of the deploying parent and shall facilitate opportunities for communication. These cases take precedence on the court’s docket and shall be set within thirty days of the motion.
If you are a military member or the parent of a child with a military parent, it is important that you speak with an experienced and knowledgeable attorney who can help you navigate these challenges.
ADULTERY IN A VIRGINIA MILITARY DIVORCE
As a servicemember, the maximum punishment for adultery under the UCMJ Article 15, is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to a year. Adultery is more likely to be enforced if the adultery is within the chain of command and additional charges like fraternization can be added. Even if you are separated, you may still be guilty of adultery so long as you are not legally divorced. Adultery can be a career ending issue.
For the civilian spouse of a servicemember that has committed adultery, it is important to seriously consider the negative consequences possible if a servicemember is charged under the UCMJ. Adultery is an emotionally charged issue and counsel will help you consider all of the possible courses of action and outcomes. The servicemember could lose their pay, allowances, and retirement which may significantly affect child support, spousal support, and equitable distribution (for example, there are no retirement benefits for a dishonorable discharge).
If you or your spouse are facing adultery issues in a military divorce, it is important that you hire an experienced Virginia divorce attorney that is familiar with the implications that this can have on all aspects of your divorce.
MILITARY DIVORCE LAWYERS IN VIRGINIA
Although ordinary divorce cases are often incredibly stressful procedures, the matter can be even more difficult when one of the spouses is a military servicemember. Since there are numerous complexities involved in military divorce cases, it is critical that a well-versed military divorce attorney is obtained to help throughout the process. The attorneys at Nova Legal Professionals have years of dedicated experience in representing servicemembers and their spouses in military divorce cases. Given the complexities between state and federal laws in these types of divorce cases, an experienced and proficient divorce attorney should be sought.
Whether you are a servicemember or a military spouse, our attorneys at Nova Legal Professionals can help you protect your rights and obtain a fair and equitable resolution in the best interests of you and your children.
Contact the military divorce lawyers at NOVA Legal Professionals in Northern Virginia located in Manassas and Fairfax. We understand the difficulties that military members and their families face and can help you navigate this complex area of the law.
If you want to speak with one of our attorneys to discuss your case, reach out to us at any of our offices in Manassas, Prince William County, Fairfax, Fairfax County, or Stafford/Fredericksburg, locations to schedule.