Military Divorce, Custody and Support

Military service creates unique issues when a divorce, custody or support issue arises. There are a myriad of federal and state laws and service regulations that govern division of Military Retirement benefits, Survivor Benefit Plan (SBP) payments, and support of dependents. Custody issues are greatly affected by deployment possibilities, Navy vessel "work-ups" and watch rotations. Support of dependents is governed by service regulations in the absence a court order or agreement between the parties. The attorneys of the Military Law Group are former JAG Corps officers with decades of experience in advising military members and dependents on these issues and how to achieve the most favorable result for the servicemember or dependent.

Military Retirement Pay Division

Often the most valuable asset in a military divorce is the servicemember's military retirement benefits. The Uniformed Services Former Spouse's Protection Act (USFSPA) (10 USC § 1408) is a federal law that authorizes state courts to treat military retired pay as property solely of the servicemember or as jointly held marital property. The USFSPA does not mandate any particular division of retirement pay. The method of division is determined by each state according to that state's law regarding division of retirement pay.

The USFSPA allows division of "disposable retired pay" only. This is currently defined as the total monthly pay, less the following:

• amounts of retired pay forfeited due to court-martial
• waivers for VA disability (Title 38), Civil Service Pay (Title 5) or DoD disability (Chapter 61, Title 10)
• SBP premiums when the former spouse is the beneficiary.

The USFSPA does not authorize a division of any more than one-half (50%) of the servicemember's military retired pay.

It is often helpful for a servicemember to review the Soldiers and Sailors Civil Relief Act (SSCRA) ( 50 U.S.C. App. § 511 ) before deciding where to file a divorce action or responding to a divorce action filed by a spouse. The SSCRA allows a servicemember to reside in one state and claim another state as their legal residence. In addition, many states allow a servicemember to file for a divorce in the state where the servicemember is stationed, even if neither the servicemember nor the spouse is a resident of that state. These states will often reduce or eliminate the minimum time in residency requirement for military divorces.

These options leave the military member or spouse with a choice of three states in which to file for a divorce. The state where the dependent spouse resides, the state where the military member is stationed or the state where the military member claims legal residency. This choice should be governed by the benefits presented by the laws of each state regarding military retirement pay division and the goals of the divorce proceeding.

Military Divorce in Virginia

In Virginia, the courts divide marital property, including military retired pay, through "Equitable Distribution". During a contested divorce the court will apply the factors listed under Virginia Code §20-107.3 and divide the marital property accordingly. Virginia law allows this division to be applied to military pensions for any amounts earned from the date of the marriage, or initial entry into military service, whichever occurs later, until the date of separation. This is typically defined as a fraction, with the numerator being the total number of months the parties were married, before their separation, during the servicemember's creditable military service divided by the total months of the servicemember's creditable military service. The resulting percentage is the maximum award possible of the former spouse's share of military retired pay. It should be understood though that the court is not required to award the maximum percentage to the former spouse. Factors such as marital fault, interference with the servicemember's career progression and others can serve to reduce the former spouse's award of retired pay.

It is important during the divorce process to have an attorney familiar with military retired pay division and how that can be affected by factors such as an award of disability pay to the servicemember or an award of Survivor Benefit Plan (SBP) payments to the former spouse. The attorney should be familiar with the Defense Finance and Accounting Service (DFAS) regulations regarding payment of benefits to a servicemember and dependent. Our attorneys have aggressively litigated military divorce cases for many years. We have an intimate knowledge of the service and DFAS regulations relating to military divorce, custody and support matters. Contact us to discuss your divorce, custody or support case.