Virginia Beach Military Divorce Lawyer
Going through a divorce can be emotionally trying and contentious process, regardless of the circumstances. However, getting divorced can be even more complicated if one of the spouses is currently serving in the United States military. While some aspects of military divorces are similar to civilian divorces, there are some notable differences as well.
If you are an active-duty service member or the spouse of someone in the military, and you plan to get a divorce, it’s important to familiarize yourself with the distinctions between civilian and military divorces.
At Hardt Law, P.L.L.C., we strongly recommend hiring an attorney who has extensive experience handling military divorce cases. Our Virginia Beach military divorce lawyer can offer you legal advice, explain the additional requirements you will need to fulfill, help you properly file for divorce, and protect your rights throughout the legal process.
Contact Hardt Law, P.L.L.C. today 757) 962-5588 at (for a free case review.
Current and Retired Military Members
To successfully file for a military divorce in Virginia, you must meet at least one of the following requirements. The grounds for military divorce in Virginia are:
- Cruelty
- Adultery
- Desertion or abandonment
- A felony conviction
- Living separately for at least one year if you have children
- Living separately for at least six months if you don’t have children or your children are adults
To obtain a fault-based divorce (on the grounds of cruelty, adultery, desertion, abandonment, or a felony conviction, for example), you must offer proof to back up your claim. Gathering and preserving the necessary evidence to prove a fault-based divorce can be challenging without an attorney’s help, so we would advise you to secure legal representation as soon as you have decided to separate from your spouse.
The final two grounds, which both involve living separately, will allow you and your spouse to obtain a no-fault divorce. Once you have lived separately for the appropriate amount of time (based on whether you have minor children), you can begin divorce proceedings.
One of the most significant distinctions between a military divorce and a civilian divorce involves military benefits. The courts place a major emphasis on ensuring that civilian spouses who are divorcing service members are protected and can continue to receive certain benefits.
Division of Military Retired Pay
Spouses of active and former members of the military receive numerous benefits while they are married, including their spouse’s pension benefits. While they are married, both spouses benefit from the service member’s retirement pension. The Uniformed Services Former Spouses’ Protection Act (USFSPA), passed by Congress in 1984, states that military pensions are marital property jointly owned by both spouses.
While Virginia courts do not have the authority to divide separate (personal) property, they do have the power to split and distribute marital property. In the same way that the courts may divide real estate, homes, cars, heirlooms, and other jointly-owned property between the two spouses, they can also divide military retirement pay.
Service Members Civil Relief Act (SCRA)
To formally file for divorce, you must file a complaint in court and serve the complaint on your spouse. If your spouse is in the military and is deployed somewhere far away, serving the divorce complaint can be particularly challenging. The Service Members Civil Relief Act (SCRA) offers supplementary protections to members of the military.
Military personnel who are not formally served a complaint are legally protected by the SCRA. Judges can only issue a judgment against the service member if they assign an attorney to represent and defend the service member. The attorney must attempt to inform the service member of the complaint. In addition, the judge cannot proceed with the case for a minimum of 90 days.
If a divorce complaint is successfully served on a member of the military, the service member can request a 90-day stay on their case. A judge can also decide to place a 90-day hold on the case of their own volition, after which time they can legally issue a judgment.
Survivor Benefit Plan (SBP)
Members of the military can choose to award survivor benefits to the spouse they are divorcing, which are payable to the ex-spouse if the service member dies. However, they can also opt to save those benefits for another spouse they marry in the future. If a service member decides to leave survivors’ benefits to their ex-spouse, they must take certain steps to ensure that their former partner is able to receive those benefits, especially if their ex gets remarried down the road.
20/20/20 Rule
If you have been married to a member of the military for at least 20 years, and your spouse has served in the military for at least 20 years, and those two time periods overlap, you should be eligible to continue receiving full military medical benefits and additional benefits that service members’ spouses are entitled to collect.
Military Family Care Plan
Military divorces are common, and as a result, the U.S. Armed Forces have made efforts to assist families as they navigate separations. The U.S. military actually requires all military families to have a family care plan. The purpose of a military family care plan is to outline how children in military families should be cared for. Family care plans are designed to safeguard the parenting rights of deployed service members and can also be used in a military divorce to settle child custody matters.
Thrift Savings Plan (TSP) Allocation
Civilians put money into a 401k account to save for their retirement. A Thrift Savings Plan (TSP) is the military equivalent of a 401(k). If you are a member of the military, then any amount that you added to your TSP while married will be considered marital property in Virginia. Any amount you saved before you were married will be considered separate property.
Because Virginia courts have the authority to split marital property, the amount you contributed during your marriage can be divided. Virginia courts divide property using the “equitable distribution” method. While this doesn’t mean that the property will be divided 50/50, it does mean that the court will divide the amount in a fair way after considering all relevant factors.
However, the amount you contributed before your marriage will remain separate property. If you made gains on your contributions before the marriage, those gains will be categorized as separate property. Gains from contributions made during the marriage will be considered marital property. An attorney can help ensure that assets placed in your TSP are properly allocated if you get divorced.
Contact a Virginia Beach Military Divorce Lawyer Today
Are you planning to file for a military divorce? If so, contact Hardt Law, P.L.L.C. at your earliest convenience to discuss your legal rights and options. Our compassionate Virginia military divorce attorney has the knowledge and resources to help you navigate the divorce process, resolve disputes that arise during legal proceedings, and defend your property and parenting rights.
Call Hardt Law, P.L.L.C. in Virginia Beach today at (757) 962-5588 for a consultation.
