Military Divorce Lawyers in Virginia Beach

Making the decision to get a divorce is never easy. But when you are certain that your relationship is over, divorce is often the best thing for you and your family. If you or your spouse is a member of the military, however, then there are unique considerations that must be taken into account.

Whether you are a military spouse or in the armed forces yourself, you will need to go through the military divorce process. Under both federal and state law, health care coverage, military retirement, access to the commissary, and other issues may come into play. Our experienced Virginia Beach military divorce attorneys will advocate for your interests if you are divorcing as part of a military family.

At Poole, Brooke, Plumlee, we have experience handling all types of Virginia family law matters – including divorce for military members. Whether you are concerned about your military pension, child custody, or simply want to make sure that your divorce is fair, we can help. Reach out to our law firm today to schedule a consultation with a Virginia Beach divorce lawyer.

How Are Military Divorces Different?

Members of the armed forces sacrifice a great deal to serve our country. As such, our government wants to make sure that they are not treated unfairly when it comes to certain civil court proceedings – such as divorce. There are numerous federal laws that are specifically designed to protect military members and their spouses in divorces.

First, the Federal Servicemembers Civil Relief Act of 2003 protects members from the adverse effects of certain legal and financial transactions while on active duty service. When it comes to civil legal matters like divorce, this means that a court cannot enter a judgment against you in favor of the opposing party without you having a chance to appear in court and/or defend yourself.

As such, a military spouse who is seeking a divorce must file an affidavit with the court stating whether or not their soon-to-be-ex is in active duty military service. If you are in active duty military service, then a court cannot enter a default judgment against you until after an attorney has been appointed to represent your interests. In addition, the court can delay proceedings for at least 90 days in some cases.

Second, the Uniformed Services Former Spouses’ Protection Act (USFSPA) addresses how certain military benefits are divided in a divorce. It allows state courts to treat a military pension as marital property that can be divided in a divorce, but it sets certain limits. For instance, a state court can only divide up to 50 percent of the military member’s disposable retired pay. There is no minimum number of years that parties must be married before retired pay can be divided in a divorce; however former spouses are only eligible to receive payment directly from the Defense Finance Accounting Service (DFAS) if they have been married to the service member for at least 10 years of their creditable service. Otherwise, the service member will pay their former spouse in a manner ordered by the state court.

Beginning in 2017, state courts must apply the “frozen benefit rule” to determine the division of a military pension for service members that have not yet retired at the time of divorce. Under this rule, the former spouse has their benefits frozen based on the date that the marriage is dissolved. In other words, if the military spouse continues to serve, then their retirement benefits will grow based on their time in service and rank – whereas the former spouse is only entitled to a portion of these benefits based on the value of the pension at the time that the divorce was finalized.

If a former spouse was married to a service member for at least 20 years of their military service, then they may be entitled to other military benefits – such as commissary, medical benefits (Tricare), and military exchanges. Calculations related to military benefits can be complex. An experienced Virginia Beach military divorce attorney can walk you through the process and ensure that your rights are protected.

These are the two main distinctions between military and civilian divorces. However, given the nature of military service and the federal laws governing these cases, there are unique issues – particularly when it comes to property division. Things to consider in a military divorce may include:

Military retirement benefits/pension as marital property
Tricare for Life
Survivor Benefit Plans
Thrift Savings Plans
Divided Retirement Pay Orders
Qualified Domestic Relations Orders
Creditable years of military service
Creditable years of marriage
Disposable retired pay

Child custody may also arise as a legal issue in a military divorce in a different way. For example, if the military spouse is serving abroad or stationed in a different location, it may impact who has primary physical custody of the kids. If you have questions about how military service impacts your divorce case, reach out to our law firm to talk to a member of our legal team.

The Military Divorce Process

To get a divorce in Virginia, you must meet the same criteria as for a civilian divorce. This includes:

Felony conviction during the marriage with a sentence of confinement for more than one year;
Cruelty and/or desertion;
Adultery within the past 5 years;
A one-year separation for couples with children; or
A 6-month separation for couples without children if they have signed a separation agreement.

The first 3 are grounds for a “fault” divorce. Most couples choose a no-fault divorce, where neither party has to prove that the other was somehow to blame. To initiate a no-fault divorce, the couple must be separated without cohabitation for either 1 continuous year or 6 months if they don’t have children and have a separation agreement .

To file for divorce in Virginia, one party must be a resident and domiciliary of Virginia at the time of the divorce filing and for the six months prior to filing. For a military divorce, if a military member is stationed in Virginia for at least six months prior to filing, this fulfills the residency and domicile requirements. Being stationed in Virginia includes being stationed on a ship that has its home port in Virginia.

If you meet the eligibility criteria for filing for divorce in Virginia, you will need to file it in the local courthouse and serve the paperwork on your soon-to-be-ex. For spouses of military members, particularly those who are deployed, this can be challenging. There are specific procedures that must be followed for this type of case, including submitting an affidavit regarding the other party’s status as a military service member.

If you are able to serve your ex, then the next phase of the divorce can begin. Under Virginia law, a divorce can either be contested or uncontested. An uncontested divorce requires that the parties are able to agree about all of the major issues – such as alimony, asset division, child custody, and child support – and have it documented in a separation agreement.

If your divorce is uncontested, it may be possible to get divorced without going to court. However, any separation agreement must follow federal law, particularly when it comes to the division of military benefits. As noted above, the non-military spouse may be entitled to a portion of the military spouse’s retirement benefits, Thrift Savings Plan, and other benefits.

If a divorce is contested, then the case will go through discovery, court hearings, and potentially a trial. Even in a contested divorce, the parties may come to an agreement through mediation or another form of alternative dispute resolution. Otherwise, a judge will likely make a decision on the outstanding issues in your divorce – such as property division, alimony, child support, and child custody – based on both Virginia and federal law.

Military divorce is unquestionably more complicated than a civilian divorce. If you are contemplating divorce and either you or your spouse is a member of the military, you will need an experienced military divorce lawyer. Based in Virginia Beach, our law firm handles military divorces throughout the region, including in Norfolk and Newport News. Reach out today to schedule a consultation.

Considering a Military Divorce? Our Law Firm Can Help.

Divorce is never easy – even when both parties want to end their relationship. Yet when one or both spouses are in the armed forces, getting a divorce can be more challenging. There are different rules and procedures for military divorces that must be followed in order for a divorce to be properly completed.

The lawyers of Poole, Brooke, Plumlee are proud to represent members of the United States Army, Navy, Air Force, Marines, and Coast Guard in family law matters. We have significant experience handling military divorces and use our knowledge of federal and state law to help our clients achieve the best possible outcome. To learn more or to schedule a consultation with a Virginia Beach military divorce attorney, give our law offices a call at 757-499-1841 or fill out our online contact form.