Divorce can be challenging and complicated, especially if one or both partners presently serve in the military. A typical divorce process is not always available for these active members, and different procedures must be followed. Obtaining a military divorce can necessitate numerous additional steps.
If you are in the military or married to those in the military and would like to divorce in Virginia, there are special considerations. It’s critical to grasp these distinctions so that you can correctly file your divorce papers and safeguard your legal rights.
Challenges of Military Divorce in Virginia
The first important distinction in a divorce involving a member of the Armed Forces is that the divorce may be postponed due to protections under the Servicemembers Civil Relief Act. It protects a servicemember against a default judgment if they were not served with the divorce complaint, and it allows a judge to postpone the finalization of divorce for 90 days or more.
Additionally, in Virginia, divorces, child custody, child support, alimony, and property distribution must be agreed to by the spouses or ruled by a court. The following are some of the concerns that can arise during a military divorce:
Property Division
Property division is a term used to describe the process in which marital property must be split equitably in all divorces. The serviceperson’s pension is a significant asset in a military divorce. However, the Uniformed Services Former Spouse Protection Act states that a military pension is deemed property, and the non-military spouse’s claim to a portion of it is protected.
Child Custody
When a parent is deployed, obtaining custody of their children might be more difficult. When a service member is stationed outside of Virginia, they can request custody and permit the children to stay with their parents or siblings.
Child Support
A deployed service member will not have weekly visitation or share parenting responsibilities as much as a civilian. They may be required to pay higher child support due to this.
Alimony
In a military divorce, alimony is frequently a topic of discussion. If a military spouse had sole responsibility for the children or if their spouse was regularly stationed at multiple military stations, they may not have worked. They may be eligible for alimony, at least temporarily, while they pursue additional education and work skills.
Getting Ready for the Challenges of Military Divorce
In any marriage, the possibility of filing for divorce and the procedure itself may be complex, and there are many challenges that couples must confront, as well as issues that neither partner anticipated going into it. Due to the specific circumstances of military life and the particular rules that surround it, military divorces can create additional problems.
It’s crucial to understand the differences between filing for divorce in a civilian marriage and one in which one spouse is active duty, reserve, or retired military personnel. Though they follow a similar procedure, some standards regulate how you can file child and spousal support, child custody, and pension/benefit divisions, among other things.
With this in mind, there are a few things to know and prepare for before entering a military divorce. The first and most important is that you should expect a lengthy procedure. Deployments and other service-related responsibilities might postpone filing for divorce in a military marriage, in addition to the obligatory separation periods detailed further down. If one of the spouses is still serving in the military, any decrees must meet the SCRA’s provisions.
How to File a Divorce in Virginia
Divorce is a complex process to go through. It’s considerably more challenging to apply for divorce while serving your country overseas. If you are a military member and need a divorce, here is some helpful information to help you navigate the process. Please keep in mind that our recommendations are based on Virginia divorce laws.
Requirements for Filing a Divorce in Virginia
If you are a member of the military, in that case, you can file for divorce in Virginia if you live in the state and have been stationed for at least six months, were stationed for at least six months immediately previous to an overseas assignment, or are serving on a ship with a homeport in Virginia.
If at least one spouse lives in Virginia, a divorce can be filed there. If you live overseas and your husband resides in Virginia, you can still petition for divorce in Virginia.
How Long Does a Military Divorce Take in Virginia?
Before receiving a divorce decree, most states require a time of separation. This usually lasts six to twelve months. The grace period for separation in the state of Virginia is six months. You and your spouse must be living apart throughout this period. If you’re on active service overseas, the time you spend apart in another nation can count against your grace period.
To petition for divorce by deposition, the divorce must be uncontested, which means that both spouses agree on all aspects of the divorce, including property division, child custody, and asset and debt distribution. If you and your husband cannot agree on specific conditions of your divorce, you will not be able to file for divorce by deposition.
A contested divorce must be filed, which necessitates a court appearance. Divorce proceedings that are contested take longer to resolve, cost more money and are more traumatic. When at all possible, we advise avoiding a disputed divorce.
What is the 10 10 Rule in Military Divorce?
The 10 10 rule states that if you have been married for at least 10 years, and your spouse was a military member for at least 10 years, you can receive the portion of retirement pay due to you sent straight from the DFAS rather than your ex-spouse.
If you look up military divorce concerns as they relate to military retirement income on any marriage law website, one of the first things you’ll hear about is the Uniformed Services Former Spouses Protection Act (USFSPA). This federal statute is intended to help service members and ex-spouses understand their rights and obligations while dealing with the retirement pay issue during a divorce.
What role does the USFSPA play in this situation?
According to the DFAS official site, federal legislation recognizes the state court’s ability to “distribute military retired pay to a spouse or ex-spouse” and provides a method for the DoD to enforce these court decisions lawfully. However, an ex-spouse is not automatically entitled to a portion of the service member’s retirement salary.
According to the DFAS official website, the Department of Defense must be ordered by the court for the ex-spouse to get a share of military retirement pay. DFAS stated that this must be awarded as a portion of a member’s military retired pay as property in a final court judgment.
What are the Grounds For Divorce?
Before a divorce petition may be filed with the court in Virginia, legal basis, or “grounds,” must exist. The following are the legal reasons for divorce as defined by Virginia Code 20-91:
- Adultery;
- Felony charge and detention after marriage;
- Violence;
- Desertion or willful abandonment;
- You have been separated from your partner for more than a year without cohabitation, but only six months if you don’t have minor children and have a separation agreement.
To obtain an uncontested divorce, you and your spouse must agree on one of these reasons as the reason for divorce. If you agree that separation is the cause, you must wait the specified amount of time (one year or six months) before filing for divorce.
After a brief study of these grounds for divorce, it should be evident that the majority of them do not often offer the foundation for an uncontested divorce. An uncontested divorce will most likely be based on the grounds of “separation without cohabitation.” This legal basis for divorce lacks the emotionally charged overtones of grounds such as “adultery,” “willful desertion,” or “felony conviction.” Parties accused of being the “wrongful” actor under these grounds for divorce are frequently eager to oppose the divorce.
To proceed with an uncontested divorce, the parties must agree on the legal foundation for the divorce and resolve all substantive concerns.
Why Do You Need Legal Advice?
You should obtain legal counsel from a divorce lawyer who has handled military divorces before. Your military divorce lawyer can counsel you on all of the issues in your divorce and ensure that you understand the practical implications of any settlement you reach on the case’s difficulties.
You run the danger of difficulties arising that you or your spouse did not consider, which could derail the process of finalizing an uncontested divorce if you do not seek formal legal advice. The lawyer can also assist you in carefully crafting your marriage settlement agreement to represent the terms of your agreement appropriately.
Uncontested Vs. Contested Divorce
The time it takes to settle a contested vs. uncontested divorce is one of the most significant distinctions. Divorces that aren’t disputed frequently go through fast. However, depending on your state and courthouse, “fast” in divorce terms may still take a long time. An uncontested divorce also eliminates the need for a trial, discovery, or other time-consuming legal procedures. That means that in an uncontested divorce, legal fees will be substantially lower than in a disputed divorce.
Another distinction between contested and uncontested divorces is the appealability of the outcomes. The terms of an uncontested divorce are not appealable because both parties consent to the settlement.
Though that does not imply that the parties are bound by the agreement indefinitely, depending on your state, you may be entitled to modify the agreement if circumstances change dramatically or a set period has passed. On the other hand, the parties are more likely to be satisfied with the outcome of the procedures because they are making the decisions themselves.
The judge is ultimately responsible for making choices for the couple in a contentious divorce that does not settle. The court may choose to prioritize some concerns over others, but this may not necessarily coincide with the couple’s priorities.
While there are advantages to an uncontested divorce, it is not always possible to agree with your soon-to-be ex-spouse on critical issues. Keep in mind that these agreements do not have to be reached by the spouses alone. The parties can perhaps work out a settlement that resolves their issues by working with an experienced military divorce attorney and possibly pursuing mediation (which some courts require).
What is a Military Wife Entitled to in a Divorce?
If you’re going through a divorce with a military member, you should be aware that you have some special rights and protections. Divorces are usually handled by state courts rather than the military. On the other hand, a military divorce attorney can clarify the exceptions and specific rights that apply to military spouses.
Benefits and Pensions
A military service member’s pension is one of his most precious assets. Strict federal rules govern the division of military retirement. The length of your marriage and even the circumstances of your divorce are factors to consider. You should see an attorney to learn about your options for collecting military benefits after your divorce.
Jurisdiction
When you’re married to a member of the military, deciding where to file for divorce might be tricky. After all, your spouse could be stationed in another state or perhaps another country. State law will, in most cases, handle the proper jurisdiction and residence requirements.
However, if you are confused about where to file for divorce, you should see a military divorce lawyer. There may be specific procedures and rights in some jurisdictions that allow a military spouse to apply for divorce.
Housing
Your ex-spouse does not have the legal authority to evict you after the divorce. Instead, you might be allowed to stay in the dwelling for a limited time while you look for a new home. You may be able to remain in military family housing.
Child Support and Alimony
Upon separation, every military branch expects service personnel to support their families. These rules are highly precise; therefore, you should see an attorney for additional information.
FAQs About Virginia Military Divorce
Anyone who is going through a divorce knows how difficult it can be. So, we answer some of the frequently asked questions about military divorce.
How do military divorces differ from civilian divorces in Virginia?
Because military personnel is frequently stationed outside of Virginia—often in other countries—the federal government and Virginia courts have created rules to ensure that active-duty members are not separated without their consent. The Soldiers and Sailors Civil Relief Act permits a divorce to be postponed for sixty days while a military member is on duty. If the service member wants the divorce, they can waive the postponement.
What factors should I consider while deciding whether or not to file for divorce in Virginia?
Before filing for a military divorce, you or your spouse must have lived or been stationed in Virginia for at least six months.
What are the requirements when divorcing an active service member?
The service member only needs to sign a waiver of acknowledgment if the divorce is uncontested. A summons and a copy of the divorce action must otherwise be served in person on the military spouse. This should be possible with the guidance of a knowledgeable Virginia divorce lawyer.
What grounds are permissible for a military divorce in Virginia?
The legal grounds for divorce are the same whether one of the parties is a member of the military or two civilians.
Is it true that military personnel’s child support and alimony payments are maxed?
Although the military specifies minimal amounts of child or spousal support that members must pay to their spouses depending on their rank and pay grade, such figures do not correspond to those required under the Virginia Support Guidelines and the judicial procedure in Virginia.
You’ll need to go to court to get the right amount of support, and you won’t get it unless you go to court. In Virginia, support payments are only retroactive to the period of the initial support petition.
Final Thoughts
Divorce in Virginia is defined as the court-ordered formal dissolution of a marriage. Divorce is a stressful process, and it can be made even more complicated when both or one spouse is a member of the military. Each state has its regulations regarding where a person should file for divorce, the distribution of marital assets, and what military benefits the non-military spouse can receive, depending on where the divorce is filed. If you are still unsure of the military divorce process, it is best to seek legal advice.