Divorcing your spouse can be a difficult and complicated process. It’s even trickier when one or both spouses are active members of the military.
Getting divorced while in the military can sometimes take longer than a civilian divorce, especially if one of the spouses is on active duty.
Dividing assets and calculating support can also be difficult when your main source of income is the military.
In this article, we’ll cover everything you need to know about military divorce in Virginia and how it’s different from the regular divorce process.
The Basics of Divorce in Virginia
Before going into how military divorces differ, you need to understand the basics of divorce in Virginia.
Essentially, all divorces fall under a combination of either fault or no-fault and contest or no-contest, as seen here:
|Contested||Contested Fault-Based Divorce||Contested No-Fault Divorce|
|Uncontested||Uncontested Fault-Based Divorce||Uncontested No-Fault Divorce|
We’ll briefly explain each of these below, but you can read more about them in our articles:
Virginia residents can file for a fault-based divorce when one spouse commits one or more of the “faults” listed in Virginia Code § 20-91.
Specifically, you may file for a fault-based divorce after an instance of adultery, abuse/cruelty, abandonment, or a felony conviction.
If you’re filing for divorce because of abuse, cruelty, or abandonment, you’ll first have to separate from your spouse for either 6 months (if you have no children) or 1 year (if you have children together).
If you’re filing for divorce because of adultery or a felony conviction, you may file for an immediate absolute divorce.
As the name implies, you may file for such a divorce immediately, without having to separate for a year.
In a no-fault divorce, neither spouse is saying that the other is “at-fault” for the divorce.
While you can’t file for a no-fault divorce until you’ve been separated for a year (or six months if you don’t have any minor children), you can still draw up a separation agreement while you wait.
This agreement can help you settle important matters ahead of time, such as to divide property and child custody arrangements.
Contested and No-Contest Divorces
Even if a couple is seeking a no-fault divorce, there still may be disagreements about dividing assets, child custody, or child support and alimony.
A divorce becomes “contested” when either party disagrees on any significant issue in the divorce.
On the other hand, if you and your spouse agree on every element of your divorce (and create a full separation agreement), you can file for an “uncontested” divorce.
It goes without saying that an uncontested divorce will take less time and resources than a contested divorce.
In fact, one of the quickest ways to get a divorce in Virginia is to go for a no-fault, uncontested divorce.
How Filing for Divorce Differs for Military Members
Keeping these basics in mind, there are a few requirements that military members don’t have to worry about when getting divorced in Virginia.
Virginia Residency Requirements
In a regular divorce, at least one spouse must have lived in Virginia for at least six months prior to the commencement of the divorce action.
They must also intend to stay in the state after finalizing the divorce.
However, Virginia courts generally waive this requirement for military divorces.
In a military divorce, the military spouse must have been stationed in Virginia for at least six months, but doesn’t have to plan to stay in Virginia.
Filing for Divorce as a Military Member
During a divorce, the party who is not filing for divorce must have notice of the pending suit for divorce.
This process of giving notice is commonly called “getting served” with divorce papers.
When one spouse serves the other with divorce papers, that person must respond within a certain amount of time.
Otherwise, the petitioning spouse can pursue a default divorce.
Obviously, individuals who are on active duty can experience difficulties in receiving and responding to divorce documents.
That’s why Virginia law protects members of the military from default divorce judgments.
Specifically, the Servicemembers Civil Relief Act (SCRA) contains two separate sections for deciding a stay of proceedings for a civil case involving a service member:
- If the service member does not have notice of the proceeding (i.e. is on active duty and cannot be located or contacted) they must follow the rules outlined in 50 U.S. Code § 3931 – Protection of servicemembers against default judgment.
- On the other hand, if the service member does have notice (i.e. has been served with divorce papers but is currently deployed), they must instead follow the rules outlined in 50 U.S. Code § 3932 – Stay of proceedings when servicemember has notice.
What’s the Difference?
Essentially, in all cases where the non-filing spouse is on active duty and cannot appear in court, a judge is likely to order a stay of proceedings, either at the service member’s request or on their own.
This is generally outlined in 50 U.S. Code § 3932 as noted above.
The purpose of this stay is to allow active duty service members the opportunity to appear in court and respond in civil matters.
While judges have some discretion, based on the relevant facts, as to how long a stay should last, the minimum is 90 days.
A judge can extend the stay past the 90-day minimum, although the party requesting the stay may have to show good faith and due diligence in seeking military leave to attend court for longer stays.
Because of this, the length of a stay will usually correspond with how long the service member is on active duty.
If you did not have notice of the civil proceedings against you, and also failed to request a stay of proceedings, you still have options.
For example, under 50 U.S. Code §
This essentially gives you a chance to challenge the original judgement now that you’re back in the country.
Military Members and Separation Agreements
During the actual divorce process, the two spouses have to either agree on how they’ll divide their assets or (in a contested divorce) have a judge decide the matter.
For military members, there are several issues which differ from normal divorce proceedings, such as:
- Property division
- Military benefits
- Child custody
- Alimony and child support payments
We’ll outline each below.
Property Division and the Uniformed Services Former Spouse Protection Act (USFSPA)
For any divorce, Virginia law requires that the couple divide their property in an “equitable manner.”
This essentially means that you have to divide your property “fairly” between yourself and your spouse.
While the default is a 50/50 split, uneven splits such as 60/40 or even 70/30 are not uncommon, though they depend heavily on the circumstances surrounding the divorce.
When it comes to military divorces, however, equitable property laws can become a bit more complicated.
For example, retirement benefits for military members can be substantial, and the other spouse will most likely have a claim to share in those benefits.
Because of these complications, congress passed the Uniformed Services Former Spouse Protection Act (USFSPA) in 1982.
This act is a federal statute that protects the spouses of military members from being excluded from military pensions in the event of a divorce.
Critically, this act treats military pensions as property instead of income during divorce proceedings.
This makes it easier for the non-military spouse to benefit from the military pension.
In fact, this “property” is often one of the largest assets in a military marriage.
The formula the courts use to divide a military pension depend on several factors.
However, the most important by far are (1) the length of the marriage, and (2) the number of years that the military member was on active duty.
Finally, you should note that these formulas change often, and the laws for
For this reason, you should always speak with a lawyer who is up-to-date on military divorce laws before deciding on how to split a military pension.
Medical Care and Survivor Benefits
Another important aspect of military divorce is the division of certain medical and survivor benefits.
Depending on how long you’ve been married, and how many years the military spouse has served, the non-military spouse may be eligible for medical insurance until they are remarried.
In addition, most members of the military have a Survivor Benefit Plan (SBP) for their spouse in the event of death.
This benefit is often overlooked during military divorces, but is a key issue that needs to be addressed.
One of the most difficult considerations in a military divorce is deciding on the custody of any children.
As in any divorce settlement, the court’s main consideration will be the best interest of the child.
For this reason, the court will often award custody to the non-military spouse due to the frequent deployments and relocating of members of the military.
However, there are also a few actions the military parent can take to ensure their custody rights are upheld.
For instance, as a military member, you could file for custody then have the child stay with your own parents (the child’s grandparents) or one of your siblings while you’re away.
In this way, you can keep your parental rights even while you’re away on deployment.
Editor’s Note: As of 2019, the Virginia Code now contains a new power of attorney law which may prove beneficial to deployed service members who have custody of underage children. For more information, see our article: “Virginia Code Updates for 2019: An Overview of the New Laws.”
Alimony and Child Support
There are a few reasons why alimony and child support are major concerns for non-military spouses during a military divorce.
Generally, these revolve around being properly compensated for taking care of children while the military parent is away on deployment.
As a result of staying home, non-military spouses often have issues finding employment and housing after the divorce, and may have problems properly caring for the children as a result.
For example, a non-military spouse may file for spousal support (commonly referred to as “alimony”) if they lack the career skills to return to the work force.
Similarly, they may also file if they have problems finding housing if they’ve lived on military bases for an extended period of time.
As another concern, military parents often pay more in child support than parents going through a normal divorce.
This is because their deployment schedules often don’t allow for regular visitation, placing a higher burden of childcare on the non-military spouse.
While military divorces have the same result as civilian divorces, there are a few additional rules and circumstances you need to keep in mind.
For example, Virginia waives some of the residency requirements for military divorces.
Similarly, certain federal laws, such as the Uniformed Services Former Spouse Protection Act, can affect the division of your assets.
Contested divorces can also be harder to negotiate for military members who have to work around deployment schedules.
Alimony, child support, and visitation all become more complicated when a military spouse is involved.
Because of the many variables involved, it’s best to hire a knowledgeable attorney to help you during a military divorce.
Don’t make the mistake of trying to handle it alone.