Virginia is home to 19 active military bases, including some of the oldest and most well-known in the country. Most are Army and Navy bases, but all five branches of the military have at least one base here.  In total, there is more than 125,000 active-duty military personnel that live in Virginia, making the Commonwealth the second most populous military state – only California has a higher population of servicemembers.

With such a strong military presence in Virginia, the question often comes up about how to divorce a spouse who is currently serving. Going through a divorce is difficult under any circumstances, but this is especially true if one or both of the spouses is a member of the military. With complications such as deployments and other orders that active members receive, it is not always possible for the couple to follow a standard divorce process.

The first thing that needs to be determined with a military divorce is where the divorce should be filed. The correct jurisdiction would be the one where the requesting party (plaintiff) is residing. To be eligible to file for a divorce in Virginia, the plaintiff must have been a legal resident of the Commonwealth for at least six months.

A couple can initiate a divorce after six months if they have no minor children and a separation agreement. If the couple does have children (from the marriage), then they must have been separated for one year. Fault-based divorces such as adultery, cruelty, and desertion can be filed immediately. Speak with a Virginia family law attorney for additional details about whether or not you meet legal requirements to file for divorce in the state.

Serving Divorce Papers to a Member of the Military

For the divorce proceeding to move forward, the receiving party (defendant) must be notified of the divorce and respond within the allotted timeframe. But when the defendant is active-duty military, it may not be easy to locate them. When an active-duty military member is served but they are unable to respond because of deployment, there are different criteria in place that apply to these circumstances.

Division of Assets and Property

In a military divorce, marital property and assets are divided according to Virginia’s equitable distribution laws. The spouses can negotiate the division of assets and property on their own (or through their attorneys); or if they cannot agree, then the court will intervene and disburse the assets in what they view as a “fair and equitable” manner.

Distribution of Military Benefits

Among the most unique aspects of a military divorce is the distribution of military benefits. This process is governed by the Uniformed Services Former Spouse Protection Act (USFSPA), a federal statute that permits states to classify military retirement pay as marital property. There are various methods of calculating what percentage of the military pension an ex-spouse is entitled to:

The military also has its own version of a 401(k) plan, referred to as a Thrift Savings Plan (TSP). In a military divorce, a TSP is generally treated the same way as a civilian 401(k) plan, but there are specific requirements that must be met by the court order that are different from a civilian plan.

During the divorce, the Survivor Benefit Plan (SBP) should be addressed. The military member has the option to keep their ex-spouse as the beneficiary under the plan, or they can remove them and designate a new beneficiary. This is something that can be negotiated between the spouses at the time of the divorce.

Former spouses of military members are only allowed to retain base privileges if they meet what is known as the “20/20/20 rule”. Under this rule, the following three circumstances must apply:

The same eligibility rules apply to healthcare benefits (Tricare) – if you qualify for base privileges, you also qualify for Tricare benefits as long as you do not get remarried.

Child Custody, Child Support, and Spousal Support

Other common divorce issues such as child custody, child support, and alimony/spousal support are handled similarly in military divorces to how they would be with a civilian divorce. An active military member can receive custody of children if they are determined to be a fit parent, but the parenting plan could be complicated by deployment schedules and other unique circumstances.

Child support payments are determined by Virginia state guidelines (although adjustments can be made to address specific needs), and the awarding of spousal support is based on several specific factors; such as the duration of the marriage, incomes and financial needs of each spouse, and the age and health condition of each spouse.

Contact a Reputable Virginia Divorce Attorney

Getting divorced when one or both spouses is a member of the military adds a layer of complexity to the process. If you are in this situation, it is beneficial to work with an experienced divorce lawyer who understands the ins and outs of these types of cases.

To get started on your military divorce in Virginia, call Buck, Toscano & Terezkerz in Charlottesville at (434) 977-7977 to schedule a free initial consultation. You may also send us a secure and confidential message through our web contact form.

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