The Virginia and Washington, DC metropolitan area is home to a highly transient population, including numerous military personnel and their families. Some of these service members serve overseas, while others work domestically, and many do both. But what happens when a military family wants to get a divorce? Are there special rules or circumstances that apply to military families compared to non-service member families? The answer is both yes and no.
Military Divorce as a Private Civil Matter
Generally speaking, the military views divorce as a private, civil matter, much like any other divorce proceeding between non-military couples. However, there are certain benefits and protections afforded to military couples going through a divorce.
Legal Assistance for Military Members and Spouses
Military service members and their dependent spouses have access to legal assistance services, free of charge, through installation legal assistance offices. Each spouse will receive their own legal advisor to avoid conflicts of interest. These legal advisors can offer guidance on a variety of legal issues, such as divorce, child custody matters, income taxes, wills, and the Servicemembers Civil Relief Act (SCRA). However, they may not be able to draft and file court documents or represent either spouse in civil court.
For highly contested issues such as child custody, spousal support, and property division, it is necessary to hire a knowledgeable family law attorney—like those at DiPietro Family Law Group—to represent you in your divorce.
Servicemembers Civil Relief Act (SCRA) Protections
The Servicemembers Civil Relief Act provides some protections to service members going through a divorce. If either spouse is called to active duty in any branch of the armed forces, the National Guard, or Coast Guard, that individual can obtain a ‘stay’ (postponement) of the divorce proceedings. However, a stay is not automatically guaranteed.
How to Obtain a Stay
To obtain a stay, the service member must petition a military judge and provide the following:
- How military duties impact their ability to appear in civil court.
- The date when the service member will be able to appear in court.
- Proof from the service member’s commanding officer that military duties will prevent their appearance and that leave is not authorized.
Once this proof is submitted, the military judge may grant a stay of at least 90 days.
Retention of Military Benefits After Divorce: The 20/20/20 Rule
Under limited circumstances, the former spouse of a service member may retain military benefits (such as commissary, exchange, and medical benefits) after a divorce. To qualify for continued benefits, the former spouse must meet the following criteria, commonly referred to as the 20/20/20 rule:
- The former spouse must not be remarried.
- The marriage must have lasted at least 20 years at the time of the divorce.
- The service member must have performed at least 20 years of creditable service toward retirement pay.
- The former spouse must have been married to the service member for at least 20 years of the service member’s retirement-creditable service.
Consult an Experienced Family Law Attorney
If you are a (former) service member or spouse of a service member considering or going through a divorce, it’s crucial to consult with an experienced family law attorney who understands military-specific divorce issues and can protect your rights. The DiPietro Family Law Group has teams of experienced family lawyers in Northern Virginia and Washington, DC. Contact us to schedule a consultation today at (888) 530-4374.
