Divorce in military families usually involves some complicating factors that do not arise in other divorces. If one or both spouses served in the military, even if they are no longer on active duty, your divorce attorney needs to understand how to approach the special issues unique to military divorce, such as military pensions and procedural rules.
The experienced military divorce lawyers at DiPietro Law Group, PLLC are ready to help military families navigate the divorce process. We can assist in the planning stages, ensure the divorce is filed with terms that protect your interests, stand by your side throughout each stage in the process, and even help if you need modifications after your divorce is finalized. Whether you and your spouse are able to resolve issues through mediation or you need legal representation in divorce court, our team is prepared to advocate for you every step of the way.
The Servicemembers Civil Relief Act
Shortly before the United States entered World War II, the federal government enacted laws to reduce the financial burdens on service members during the period of active duty. Congress expanded these laws numerous times, most notably with the Servicemembers Civil Relief Act (SCRA) which has itself been amended several times since its enactment in 2003. The protections of the Act apply to:
- Full-time, active-duty members of the U.S. Army, Navy, Air Force, Marines, and Coast Guard
- Reservists on active duty for a federal matter
- National Guard members serving on federal orders for more than 30 days
- Servicemembers absent due to illness, injury, leave or other lawful causes
- Commissioned officers in the Public Health Service and National Oceanic and Atmospheric Administration during times of active service
In some situations, benefits of the SCRA also extend to dependent spouses and children. The protections under the SCRA that are most relevant to divorce are the provisions allowing a servicemember to put a hold on civil court proceedings and set aside default judgments, but other protections, such as protections affecting residential lease terminations and mortgage foreclosures, could also affect divorcing couples.
When Can Divorce Proceedings Be Delayed Under the SCRA?
If servicemembers have notice of civil proceedings such as a divorce or custody action, they can request a stay of that action under50 U.S.C. §3932 if:
- They are in military service or within 90 days of release from service
- They apply with a letter explaining how military duty impacts their ability to appear in court and the letter includes a date when they anticipate being able to appear
- The request for a stay includes a letter from the servicemember’s commanding officer specifying that the current military duty prevents them from appearing in court and that the servicemember is not authorized for leave
It is important to note that just because a member of the service is overseas does not automatically mean that a court will grant a stay of proceedings under the SCRA. The court may expect the servicemember to return to the U.S. during a period of leave, even if this results in significant added expense.
Protection Against Default Judgments
Another key protection in the SCRA for divorcing servicemembers is the ability to have a default judgment in civil cases set aside. A default judgment is issued by the court when a defendant fails to take certain action—usually it involves cases where a defendant fails to appear in court.
If a court enters a default judgment against a servicemember during a period of service or within 60 days of release from service,50 U.S.C.§3931 requires the court to reopen the case if:
- The servicemember or their attorney requests the judgment to be vacated or set aside no later than 90 days after release or termination from military service
- Military service affected the servicemember’s ability to defend the action
- The servicemember has a good defense
Because “military service” includes all time in the service and not just active duty, a servicemember could wait some time before asking for a default judgment to be set aside, but without good cause for doing so, the judge would be more likely to deny the request.
Residency and Service Requirements for Military Divorce in Virginia
To get a divorce in Virginia, civilians filing for divorce must have lived in the state for at least six months. Additionally, they must plan to continue to live in the state after the divorce.
Military couples seeking divorce have more leeway with residency requirements. A spouse in the military must be stationed in Virginia for the last six months but does not need to live in the state or plan to live in the state after the divorce.
An active-duty service member must be served in person with a summons and copy of the divorce action if the divorce is contested. If the divorce is uncontested and the active-duty spouse formally acknowledges the divorce action, then servicemember on active duty does not need to be served in person.
Other Factors That Impact Military Divorce in Virginia
The Uniformed Services Former Spouse’s Protection Act (USFSPA) is a federal law that allows military divorces to proceed according to state divorce statutes. This statute governs how military benefits, including retirement benefits, are calculated and divided during divorce.
The law specifies that a military pension (disposable retired pay) should be divided as property in a divorce, rather than treated as income of the servicemember. Former spouses may receive their share of pension payments either from the servicemember or through direct payments from Defense Finance and Accounting Service.
To receive direct payments, the spouses must have been married for at least 10 years and the servicemember must have provided at least 10 years of service credited toward retirement purposes. Only the marital portion of the pension can be divided in divorce.
The portion of the servicemember’s pension earned before marriage or after separation is treated as that spouse’s separate property. If the former spouse passes away before the servicemember, the right to receive a share of the pension payments ends and does not pass to heirs or the estate.
Military service can provide family members with unique opportunities, but the uncertainties and frequent moves can also affect the stability of a family. In custody decisions, Virginia courts are guided by the best interests of the child, and they tend to place considerable value on stability. That can make it easier for a non-military spouse to gain custody. However, it is important to understand that stability involves more than just a child’s location, and a military parent can present evidence to show how a child’s best interests are served by remaining with a parent in service.
Child Support and Alimony
The USFSPA allows child support and alimony payments to be taken from a military pension and sent directly to the former spouse. However the USFSPA does not allow more than 65% of retired pay to be garnished for child support and alimony.
A servicemember’s basic allowance for housing is treated as part of their gross income for purposes of setting amounts for child support and alimony. Although many people believe that a servicemember is required to pay a certain percentage of their housing allowance for support, the law has no such guideline.
VA Loans and Disability Pay
When a couple takes out a VA loan, the Veteran Benefits Administration guarantees a portion of the loan. That is provided as a benefit specifically for the servicemember. Therefore, the rules do not allow that loan to be divided or transferred to the non-military spouse. It is generally necessary to sell the home or arrange for the servicemember spouse to keep the home. If the non-military spouse wants to keep the home with the VA loan, the former spouse must remain on the mortgage and agree to continue making payments.
VA disability pay is not divided like a military pension. However, it is treated as income when determining support amounts.
Military Divorce FAQs
How long does a military divorce take in Virginia?
Although many uncontested divorce cases in Virginia conclude within a few months and contested cases generally do not take more than 18 months, a military divorce can take longer if a servicemember requests a stay of proceedings.
Judges have considerable discretion when it comes to determining how long they may stay proceedings. The minimum period is 90 days. The case could be stayed for a longer period if the servicemember requesting the can show that they’re making a good faith effort to obtain leave to attend court. In many cases, the length of the stay is roughly equal to the length of time the servicemember has served on active duty.
What is the 10/10 rule in military divorce?
If a servicemember was married to a spouse for at least ten years and the servicemember served in the military for at least ten years during the marriage, then the Uniformed Services Former Spouses’ Protection Act can provide for enforcement of an award of a share of retirement pay to the spouse. The rule does not automatically entitle the spouse to a share of retirement pay, but if the court orders that the spouse should receive a share, the rule allows the spouse to receive the money directly from the Defense Finance and Accounting Service.
What is a military spouse entitled to in a divorce?
A military divorce is similar to a civilian divorce in that marital property, including military pensions, are divided according to equitable principles, based on what a judge finds to be fair under the circumstances.
Do I lose BAH if I get divorced?
A civilian spouse will no longer directly receive Basic Allowance for Housing (BAH) after the divorce. A servicemember might lose BAH if they have no children and are stationed at an installation that requires them to live in a military dorm. Otherwise, they might receive single BAH. If they have children, they could receive BAH with the dependent rate or BAH-Differential to assist with child support obligations. Rules can vary according to the branch of service involved.
How does legal separation work in the military?
Divorce is governed by state law, and Virginia does not recognize legal separation as a status. However, separation can provide grounds for a no-fault divorce. If a couple lives separate and apart because a servicemember is deployed, that time can count toward the separation period.
How much is spousal support in the military?
Courts in Virginia have discretion whether or not to award spousal support based on the evidence presented. The standard in military cases is no different than when both spouses are civilians. If your divorce attorney presents compelling evidence to show why support should be awarded or denied, you are far more likely to achieve your objectives regarding support.
Where should a military member file for divorce?
In cases where a servicemember is stationed in the U.S., they must usually file for divorce in the state where they are stationed. Virginia law allows a servicemember stationed in the state to file for divorce after residing in Virginia for six months, even if they do not intend to maintain a permanent domicile in the state. An experienced military divorce attorney could provide advice as to whether it would make more sense to file in another jurisdiction based on the circumstances.
Do both military spouses get separation pay?
Separation pay granted to discharged servicemembers based on involuntary discharge could be treated as marital property depending on the situation, so it is important to consult an attorney who understands the complexities of military divorce.
Contact an Experienced Military Divorce Attorney Today
Though military divorces share similar aspects with other types of divorces, they involve additional factors that can affect both the process and the outcome in many ways. It is important that you work with an attorney who is experienced in handling military divorces to ensure that you fully understand all of your rights, options, and expectations.
Whether you are a military service member yourself, or you are divorcing a member of the military, our Fairfax military divorce attorneys have the knowledge and experience to protect your interests from start to finish.
Contact DiPietro Law Group, PLLC online or by phone to schedule a consultation.