Divorces are difficult for any family, but military families often face unique challenges. For example, a military divorce may be complicated by a spouse’s active-duty service, by veterans’ complex retirement and disability plans, by child custody issues, and more.
If you or your spouse serve in the military and you are considering divorce, it’s crucial that you work with an attorney who understands military law and the nuances of a military divorce. An experienced attorney can help you fully understand your legal options, as well as the process and requirements specific to military divorces.
All of our attorneys at Invictus Law have served in the military or come from a military family. We understand the difficulties facing military service members and their spouses in a divorce. Contact our law firm today for a case evaluation with a compassionate, knowledgeable divorce attorney to learn how we can help guide you through your military divorce.
Filing for Divorce as a Military Member
In a divorce proceeding, the spouse that files the divorce complaint must serve notice of the divorce on their other spouse. This notice triggers the time the non-filing spouse has to respond to the divorce complaint. If the non-filing spouse fails to respond to the complaint or otherwise fails to appear in court, the court will issue a default judgment, granting the filing spouse the relief they seek in their complaint.
Of course, service members on active duty face difficulties in receiving service of process for a court case, especially if they are deployed. That’s why Virginia’s Servicemembers Civil Relief Act protects military personnel from default judgments. These protections include staying the proceedings until a service member can be located and served with process and appointing an attorney to represent the service member’s interests until they can be served with process and appear in the action.
How Is Military Divorce Different Than a Civilian Divorce?
Military divorce differs from civilian divorce due to the legal protections afforded to service members to account for the fact that they may be transferred to assignments in different states or deployed overseas. Generally, if a service member cannot be located for service of process, the court will stay the action for at least 90 days to allow the service member to either retain counsel or obtain leave from duty to appear in court.
As a result, a military divorce can take longer than a civilian divorce since an active-duty service member’s ability to respond to and participate in the divorce action must be assured before the proceedings may continue.
Virginia’s Residency Requirements
If you wish to file for divorce in Virginia, you must meet the state’s residency requirements. Civilians filing for divorce in Virginia are required to have lived in the state for at least six months prior to filing their complaint for divorce and must show that they plan to remain in Virginia following the judgment of divorce.
Virginia has slightly different residency requirements for military personnel seeking to file for divorce in the state. Instead, a military service member need only be stationed in Virginia for at least six months prior to filing for divorce, and they are not required to intend to remain in Virginia after the divorce is finalized.
Separation Agreements for Military Members
In a divorce, the spouses may decide to agree on a resolution to the issues in their divorce, such as property division, alimony/spousal support, and child custody and support. However, various statutes can affect how spouses may agree to various divorce issues when one spouse serves in the military.
Survivor’s Benefits and Medical Care
Military veterans often receive substantial retirement benefits, including pension benefits and medical care. For many military families, these retirement benefits constitute the largest “asset” the family holds. Under the federal Uniformed Services Former Spouse Protection Act (USFSPA), a civilian spouse cannot be excluded from their military spouse’s pension and retirement benefits in the event of their divorce. Therefore, a separation agreement may not exclude a civilian spouse from their spouse’s military retirement benefits.
As a result of USFSPA, military retirement benefits are treated like property in equitable distribution during divorce. In dividing up the benefits of a military pension, courts consider factors including the length of the parties’ marriage and the number of years of the military spouse’s service. Equitable distribution must also determine the disposition of the military spouse’s survivor benefit plan.
In addition, depending on the length of the marriage, a civilian spouse may remain eligible for medical care through the military or the VA until they remarry.
Child Custody, Child Support, and Alimony
Determining child custody and support and spousal support/alimony can prove complicated for military families. In many military families, the civilian spouse stays home to take care of the children and home while the military spouse is deployed. This can make it difficult for a civilian spouse to return to the workforce following divorce, potentially necessitating spousal support and alimony.
Active-duty service members typically don’t get to enjoy visitation while deployed, making child custody arrangements and parenting time schedules more complex. Service members often have to pay more in child custody as a result since the non-military parent will bear more of the childcare expenses.
How Invictus Law Can Help
At Invictus Law, we know the difficulties that divorce can place on military families. Our family law director, Attorney Thomas J. Wright, is a former Marine Aviator who understands the unique aspects of military life. If you have a military family, let our firm help you through your divorce case by:
- Reviewing the facts and circumstances of your case to identify the unique legal issues you will be facing
- Taking the time to walk you through the process of a divorce involving a military spouse.
- Ensuring you understand your legal rights and options and providing an honest assessment of the potential outcomes in your divorce case, along with the benefits and risk of each available course of action
- Providing the personalized attention and responsive communication you deserve, keeping you updated throughout your case
Contact Invictus Law or give us a call at (757) 317-5125 today for an initial consultation to discuss your legal rights and options and to learn more about the divorce process for military families. We’ll review how our firm can help make the process as efficient as possible for you and your family.