Hampton Roads Virginia is home to many military service members and their families. Unfortunately, many marriages, including military marriages, end in divorce. Military divorces present numerous legal issues as well as many difficult decisions that must be made in conjunction with separation and divorce. When one or both spouses are service members, there is an added layer of complication. You may be surprised to learn that military divorce differs in many respects from a civilian divorce. Before you begin the process of obtaining a divorce, it is critical that you understand the differences between military divorce and civilian divorce. When faced with a separation and/or divorce, the most critical decision you may make is choosing an attorney with a proven track record in military divorce law.
If you're confused about the laws that affect military divorces, you're not alone. Even attorneys and judges often believe that the only unique issue is division of military retired or retainer pay. Nothing could be further than the truth. While division of military retired pay is a complex and important issue, there are other issues that must be carefully considered and addressed: the military spouse's continuing eligibility for commissary, exchange and health care benefits.
Military Divorce Vs. Civilian Divorce
Military divorces are governed by two sets of laws, Federal and State law. Federal law will affect certain issues, for instance, pension division and stays, and sState law affects certain other issues, for instance, property division, custody and visitation and support and maintenance.
Two Federal laws that are relevant to military divorces are the Service members Civil Relief Act of 2003 (SCRA) and the Uniformed Services Former Spouses Protection Act (USFSPA). Certain Federal rules and regulations are also applicable to military divorces.
The SCRA allows servicemembers to stay court hearings as well as administrative hearings if military service materially affects servicemembers' ability to defend their interests. The SCRA requires a court or administrative body to grant at least a 90-day stay if requested by the servicemember. Additional stays can be granted at the discretion of the judge or hearing official.
Unfortunately, there can be many different issues that must be addressed when a service member and his or her spouse decide to file for divorce.
In order to address and resolve these issues, it is important to understand the protection under the Uniformed Services Former Spouse Protection Act (USFSPA). The USFSPA benefits military members specifically because it does not automatically allow for a former spouse to take some of the member's retired pay. Instead, the USFSPA permits a state to treat military disposable retired pay as marital property.
Disposable military retired pay is calculated based on a service member's monthly retired pay minus qualified deductions and because of the USFSPA, this military disposable retired pay will be divided in a divorce action.
Military Retirement Pay After Divorce
Many military members also wonder what happens to their military retired pay during the property division process. State courts are allowed to treat military retired pay in the same way as a civilian pension plan, which is available for federal employees. Retired pay may be divided for property settlement purposes, and may also be garnished to satisfy child support and alimony obligations to the non-military spouse. Virginia law will determine whether military retired pay will be treated as marital property and how this pay will be divided between the two parties upon divorce. Military couples living in Virginia must keep in mind that the retired pay has a chance of being considered marital property.
Retired service members are also part of a Survivor Benefit Plan (SBP), which allows them to provide continued income to a named beneficiary in the event of the retiree's death. The USFSPA allows for a current or former spouse to be designated as this beneficiary, and sometimes the court can even order a military member to do so. The SBP was created to help make up for the loss of part of this income and it pays eligible designated survivors, such as a former spouse, an inflation-adjusted monthly income.
In certain circumstances, former spouses can continue receiving commissary, exchange, and health care benefits after a divorce. In order to qualify for continued benefits, a former spouse must meet the
First, they must show that the service member served at least 20 years of creditable service; second, they must show that the marriage lasted at least 20 years; and third, that the period of the marriage overlapped the period of service by at least 20 years.
If the former spouse does not meet these requirements given by law, they will lose their commissary and exchange privileges after the divorce is final.
Military regulations require single parents and military-married-to-military couples with children (often referred to as dual military families) to have plans concerning the care of their dependent children in the event they are deployed. These are called Family Care Plans. Upon separation or divorce, a military member with a child or children becomes a single parent and therefore must have a family care plan.
Experienced Help For Your Military Divorce
The details of a military divorce will change based upon what state you reside in as well as the unique facts and circumstances of your marriage. If you have questions regarding separation or divorce, please talk to a divorce lawyer from our team at Smith Law Firm, PLC. We have the experience and understanding to guide you through your military divorce.