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Military Divorce In Virginia – Special Considerations

Divorce is governed by State, not Federal, law, even in divorces involving military personnel.  Nonetheless, Federal laws and regulations can have a major impact on how a divorce action in state court proceeds and on the way that many matters are resolved. Matters such as the jurisdiction where the divorce is filed, child custody and visitation arrangements, calculation of spousal and child support, and the disposition of pension and similar benefits are all areas that may be substantially impacted where one or both spouses are current or former military members.

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The Service Members Civil Relief Act: Originally passed in 1940 as a reenactment of an earlier law and substantially amended in 1942, the SCRA was enacted to promote the National defense by enabling Service members “to devote their entire energy to the defense needs of the Nation”, and to protect Service members by providing “for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.”  Among other things, the SCRA restricts the power of state courts to enter final orders, default judgments, or similar actions against Service Members on active duty. These restrictions are not absolute and courts do sometimes make exceptions, especially where child custody and visitation is at issue. Nonetheless, the SCRA can be a boon to the Service Member in a divorce proceeding, where matters can be delayed if the Service Member can show harm related to his or her military service and the military member can receive extra time to respond to pleadings and orders or to make arrangements to appear at hearings.  Conversely, the law can seem very burdensome to the non-military spouse who just wants the proceedings resolved as expeditiously as possible.

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Division of Assets and Spousal or Child Support:  As with any other person involved in divorce proceedings, a Service Member can be obliged to provide spousal and child support from his or her military earnings. Likewise, a Service Member’s military retirement benefits are considered a defined-benefit retirement plan, and as such a court can apportion a share of those benefits to the non-military spouse in a divorce action. But military pay and retirement are governed by Federal laws and regulations which can be obscure, arcane, and unfamiliar to judges, attorneys, and the spouses themselves – even to the Service Member spouse.  Even a matter as simple as determining the Service Member’s total compensation can be less than straightforward: merely referencing the Service Member’s most recent tax return is not adequate, as military members receive substantial monthly compensation which is not taxable and is therefore not reflected on income tax returns.  The most common and significant of these is the Basic Allowance for Housing (BAH). For example, a Colonel with over 20 years of service receives $9,847.80 per month base pay. The Colonel receives BAH on top of this. In the Washington, DC area, his or her BAH would be $3438.00 – more than 25% of his or her total compensation, invisible on his or her Federal tax returns, which can be determined only by referring to a military-issued document known as a Leave and Earnings Statement (LES).  Apportionment of a Service Member’s military pension is another area where special considerations come into play.  As in a civilian divorce, the court can award a share of the Service Member’s future retirement income to the non-military spouse. But collecting that share is subject to special rules: Even with a court order, the Defense Finance and Accounting Service (DFAS) will only automatically pay a portion of the retiree’s pension to the non-military spouse if the two were married for at least 10 years during the retiree’s military service (10 – 10 rule), and will divert not more than half of the retirement benefit to the former spouse.  If the 10 – 10 rule is not satisfied, or if the court awards more than half of the Service Member’s pension, the former spouse will have to collect those funds directly from the Service Member.

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These are just a few of the unique issues facing Service Members and their spouses when the divorce. If you are a current or former Service Member or military spouse facing divorce, you need the advice and assistance of a dedicated and competent attorney. We would be happy to provide you that support. We have client meeting locations in Virginia & Maryland.  Please to do not hesitate to contact us. B

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