Military Divorce In Virginia & Maryland
Military divorces offer special challenges for divorcing clients. If you are facing a divorce, contact an attorney who is well versed not only in divorce law, but also has a thorough understanding of federal and state laws. Only experienced lawyers have a true understanding of these laws. The counsel in our firm frequently assist clients with divorce cases and understand the issues related to military retirement, the Uniformed Services Former Spouses Protection Act, the Survivor Benefit Plan, disability pay, and the service members’ Civil Relief Act.
Federal Law Governing Cases
USFSPA (“The Uniformed Services Former Spouses Protection Act”) is a federal law that authorizes state courts to divide a military member’s disposable retired pay in domestic relations cases. The USFSPA does not state the how a member’s retirement is to be divided by a court in Virginia or Maryland. Many members or spouses of members assume that the USFPSA requires that the former spouse receive 50% of the member’s retired pay. This is not correct. USFPSA simply authorizes states to apply their own laws regarding division of property to retirement in these types of cases.
Furthermore, the USFSPA states that, once a court has ordered a division of the member’s retired pay, DFAS (“Defense Finance and Accounting Service”) may provide direct payment to the former spouse of her share, in cases where the period of time married includes 10 years or more of the member’s service. Often referred to as the “10 year rule.” Even if the 10 year rule does not apply, a court can still award the former spouse a share of the member’s retirement. The distinction is that, the member must pay the former spouse the share directly, as direct payment through DFAS will be unavailable.
Law Governing Divorce
The law states that retired pay is considered “marital property” to the extent it was earned during the parties’ marriage, and prior to the final separation of the parties. The formula used by the courts is that the “marital share” of retired pay can be defined as a fraction, the numerator of which is the total number of months the parties were married (prior to separation) during the member’s creditable service, divided by the total number of months of the member’s creditable service. In most cases, The courts will typically award the spouse with a one-half (1/2) share of the “marital share.”
What happens if the parties end the marriage after the military personnel is retired? When the member has already retired at the time of ending the marriage, determining the marital share of retired pay is a very formulaic approach. You simply calculate both the numerator and the denominator of the fraction stated above. Here is an example of what happens when the parties file for a divorce and the member is already retired: Client serves in the armed forces for exactly 5 years before marrying his wife, and that he then serves another 15 years while married, before finally retiring. The parties then separate and end the marriage. The marital share of the member’s disposable retired pay based on this example is 75% (15 years divided by 20 years), and the spouse will likely receive a total of 37.5% of the member’s retired pay (75% divided by 2).
What happens if a military member is on Active Duty when the parties file to end the marriage. This is a lot more complex. Why? Determining the final marital share of the member’s retirement in armed forces cases where the member is still on active military duty at the time of ending the marriage is not possible. Again, why? No can know what the denominator of the marital share fraction will be until the member has actually retired.
While the court can determine is the numerator. The numerator will be fixed at the time of separation. So based on the example above, the numerator is 15 years or 180 months. So, to award the member’s spouse 50% of the marital share, the court would order the following:
“the Wife shall receive fifty percent (50%) of the marital share of the Husband’s disposable retired pay. The marital share is a fraction, the numerator of which is 180 months of marriage during the Husband’s creditable service, divided by the total number of months of the Husband’s creditable service.”
At the time, the member finally retires, DFAS will then calculate and fill in the denominator – the total number of months of the Husband’s creditable.
If you are looking for experienced military divorce lawyers in Virginia/Maryland contact our firm to discuss your case.
An attorney who handles military divorce cases in Virginia/Maryland from our firm will do his best to help you. No lawyer can guarantee you an outcome. What you can guarantee is that if you talk to us, we will do our best to help you obtain the best possible outcome based on the facts of your case.
We have client meeting locations in Fairfax, Manassas, Richmond & Fredericksburg.
If you need the help of a military divorce lawyer in Virginia in Fairfax, City of Fairfax, Prince William (Manassas), Fauquier (Warrenton), Loudoun (Leesburg), Caroline, Stafford, Spotsylvania (Fredericksburg), Chesterfield, Henrico, Arlington, Richmond, Alexandria, Warren (Front Royal), Clarke, Shenandoah, King George, call our law firm immediately for help and speak to a lawyer about your options. If you need the help of a military divorce attorney in Maryland in Montgomery County, Charles County (Waldorf), Rockville, Bethesda, Howard County, Ellicott City or Frederick, do not hesitate to call us for a consultation. B