Divorce is never easy, but military personnel and their spouses face unique problems when considering a divorce. Divorce, property division, support, custody and visitation are usually entirely governed by state law, but when one or both spouses are in the military, certain federal laws and military regulations affect those issues.
Each branch of service has regulations requiring its members to provide support to family members if there is a separation. However, many factors, including the rank of the service member, the housing allowance paid by the service, where the family lives, and the size of the family, mean that there can be a significant difference between the support required by the service and the support a Virginia court would order to be paid. Therefore, careful consideration has to be given to what the service requires versus the temporary support a spouse might be able to obtain in court.
Custody and Visitation
The Virginia legislature enacted the Virginia Military Parents Equal Protection Act, that provides certain protections for deploying military parents and provides for expedited hearings in certain circumstances. In addition, the act requires the non-deploying parent to accommodate the leave schedule of the deploying parent and to facilitate telephone and email between the deployed parent and the child or children.
Division of Military Pension
The Uniformed Services Former Spouses Protection Act (“USFSPA”) is the federal law that authorizes state divorce courts to divide a service member’s “disposable retired pay, ” not the member’s gross retired pay, and not any disability pay the member receives. If a service member waives a portion of their retired pay to get disability pay, the member’s retired pay is reduced by an amount equal to the disability pay, which then can effectively reduce the former spouse’s portion of the retired pay.
Many military spouses, and service members, believe that the military pension will only be divided if the marriage lasted at least ten years. This is a common misconception of the “10 year rule” which only has to do with the former spouse’s ability to receive his/her share of the military pension directly from the Defense Finance and Accounting Service (DFAS). The parties must have been married for a period of 10 years or more, during which time the member performed at least 10 years of creditable service toward retirement eligibility in order to receive their share of the pension directly from DFAS.
The USFSPA does not provide for any particular division of the member’s military retirement, it authorizes states to apply their own laws regarding division of property to disposable retired pay in divorce cases. Virginia State law provides that military retired pay is “marital property” to the extent it was earned during the parties’ marriage, prior to their final separation. The “marital share” is calculated as a fraction. The numerator is equal to the total number of months the parties were married (prior to separation) during the servicemember’s creditable military service, divided by the total number of months of the member’s creditable military service. Virginia courts will typically award the spouse with one-half (1/2) of the “marital share.”
Survivor Benefit Plan (SBP)
SBP is an annuity plan that pays a monthly sum to a beneficiary after the death of a retired servicemember. SBP coverage permits a servicemember to continue to provide income to a named beneficiary upon the servicemember’s death. This means that a former spouse who is entitled to a portion of the military retired pay could still receive that pay even after the servicemember dies. SBP coverage is an important asset in a divorce case.
Our attorneys are very familiar with all of the issues that can be involved in a military divorce.