If you or your spouse are in the military and you are filing for divorce, the process is no different from civilian divorce in that you and your spouse will need to resolve custody and spousal support issues, as well as the distribution of marital property. However, some factors may make the process take longer or become more complicated when a divorce involves a spouse in active military service.

An experienced Virginia Beach military divorce lawyer will guide you through every step of the divorce process, address any questions or concerns you may have about a military divorce and the complications that may arise, and negotiate the best possible settlement outcome.

What Are the Residency Requirements for a Military Divorce?

When filing for a military divorce, you must file in the state where you or your spouse are residents. You must also meet other residency requirements. For example, you must live in the state for a certain amount of time before you can file for divorce. The situation can become more complicated if you and your family have had to move multiple times due to military service.

Often, the courts will waive the residency requirement if you have not lived in the state for the required time. It is also essential to be aware of an important rule when it comes to deciding where to file for a military divorce. For the court to have jurisdiction over a military divorce, the servicemember must consent to the jurisdiction, be a legal resident of the state where you file for divorce, or live in the state where you file for reasons other than being sent there by the military.

Can I File for Divorce If My Spouse Is on Active Duty?

In some cases, you may be able to file for divorce if your spouse is on active duty. However, according to the Service members Civil Relief Act, a military spouse may not be blindsided with legal proceedings while they are serving. In addition, your spouse must agree to the divorce by signing an affidavit of consent.

If your spouse is on active duty, or they are within 90 days of returning from their deployment, they can request a stay for up to 90 days, where they do not have to respond to court proceedings to focus on the demands of their service. Your spouse’s commander must confirm that they cannot take leave from active duty to appear in court. The divorce process cannot proceed until the stay is lifted.

How Is Marital Property Distributed in a Military Divorce?

Even in a military divorce, marital property is distributed according to state laws. For example, if you live in a community property state, the court will divide all marital property equally, meaning each spouse is awarded 50 percent of the shared assets and will be responsible for 50 percent of the shared debt. If you live in an equitable distribution state, marital property will be divided in a manner that the court deems fair. While the property may be divided equally between you and your spouse, this is not always the case. There are unique laws in place that may impact how marital property is divided, including the following:

• Uniformed Services Former Spouses’ Protection Act (USFSPA) provides spouses awarded a percentage of a service member’s retirement pay to enforce child and spousal support. While no formula is used to divide retired pay, the USFSPA limits the amount to 50 percent of the service member’s disposable retirement income or up to 65 percent if payments include child support or alimony.
• The Defense Finance and Accounting Service (DFAS) allows the military to make direct retirement payments, provided you and your spouse have been married for at least 10 years and your spouse completes 10 or more years of service. For example, if you were a married service member for 15 years, but your spouse was only in the military for seven years, you will not be entitled to direct payments from DFAS. However, if your spouse was in the military for 15 years, you will be entitled to direct payments.

What Military Benefits Am I Entitled to in a Military Divorce?

While the process of a military divorce is similar to a civilian divorce in many ways, there are a range of benefits that military service members and their spouses are entitled to in a divorce, assuming certain requirements are met. Several factors will be considered when calculating the percentage of the pension that the ex-spouse is entitled to, including the length of the marriage and how many points are accumulated in the marriage, particularly if your spouse served in the Reserves. The following are examples of military benefits:

• Thrift Savings Plan (TPS): This government-sponsored retirement savings and investment plan provides retirement income for military service members. It is similar to a 401(k) plan, but some requirements must be met by the court order that differs from a civilian retirement plan division order. Like a 401(k), a TSP is a defined contribution plan, which means that the income you get from your TSP account will depend on how much you or your spouse have contributed while working for the military.
• Survivor Benefit Plan (SBP): It is a common misconception that military spouses will automatically be the beneficiary of a Survivor Benefit Plan, even if they divorce. However, this is not the case. For example, if there is more than one former spouse, the military member must specify which spouse should be covered. 
• Base Privileges: These benefits depend on the 20/20/20 rule, which means that you are entitled to full base privilege if you were married to your former spouse for at least 20 years, your ex-spouse was in the military for at least 20 years, and your marriage overlapped your spouse’s service years by at least 20 years. If you remarry, you will not be eligible for these benefits.
• Tricare Eligibility: No-cost healthcare services are available through TRICARE and will remain available to non-military spouses, provided they meet the 20/20/20 requirements discussed above. Under the 20/20/15 rule, a former spouse may also qualify for one year of TRICARE coverage if the marriage lasted 20 years, the service member served 20 years, and there was at least 15 years of overlap.

How Is Child Support Handled in a Military Divorce?

Like a civilian divorce, parents going through a military divorce must support the children according to family laws in their state. However, the military has specific rules that ensure that a service member meets their support obligations during and after the divorce. There are several ways that the court will enforce spousal and child support obligations, including the following:

• Court order
• Garnishment of wages
• Voluntary or involuntary allotment

The Virginia Beach Military Divorce Lawyers at Anchor Legal Group, PLLC Assist Clients with All Aspects of a Military Divorce

If you or your spouse are a military member and are in the process of a divorce, it is highly recommended that you contact the Virginia Beach military divorce lawyers at Anchor Legal Group, PLLC. Military divorces can be more complicated than civilian divorces, and our experienced legal team will address any questions or concerns about the process. To schedule a consultation, call us today at 757-LAW-0000 or contact us online. Located in Virginia Beach, we serve clients in Chesapeake, Norfolk, Suffolk, Portsmouth, Newport News, Hampton, Williamsburg, and Eastern Short, Virginia.