The Unique Stakes: Consequences of a Military Divorce in Virginia

A military divorce involves far more than standard divorce proceedings; it directly impacts federally regulated benefits, including retirement pay, healthcare, and survivor benefits. Understanding these unique stakes, governed by laws like the USFSPA and Virginia’s equitable distribution statutes, is critical to securing a fair and stable financial future post-divorce. The consequences of mishandling these elements can be life-altering and often permanent.

In a standard civilian divorce, the primary financial considerations are often alimony, child support, and the division of tangible assets like the marital home and bank accounts. In a military divorce, these elements are present, but they are overshadowed by a set of complex, high-value assets and protections unique to military service. The primary federal law governing the division of military retirement is the Uniformed Services Former Spouses’ Protection Act (USFSPA), found in 10 U.S.C. § 1408. This act does not automatically entitle a former spouse to a portion of the retirement pay; rather, it *permits* state courts, like the Virginia Beach Circuit Court, to treat disposable retired pay as marital property subject to division.

Virginia is an “equitable distribution” state, as outlined in the Code of Virginia § 20-107.3. This means marital property is divided fairly and equitably, but not necessarily 50/50. A Virginia judge will consider numerous factors to determine a fair division of the marital share of a military pension. The “marital share” is the portion of the pension earned during the marriage. The calculation can be complex, but it’s a foundational piece of any military divorce settlement.

Another critical consideration is the Servicemembers Civil Relief Act (SCRA). This federal law is designed to protect active-duty members from being disadvantaged in legal proceedings, including divorce, while they are serving. The SCRA can be used to request a “stay,” or a temporary halt, of the divorce proceedings if the servicemember’s duties prevent them from adequately participating in their defense. I have seen this invoked many times, especially for clients deployed overseas. It is a vital protection, but one that must be understood and properly applied.

The potential consequences are significant:

• Loss of Future Income: Improperly calculating or failing to secure a share of the military pension can mean losing out on tens or even hundreds of thousands of dollars over a lifetime.
• Forfeiture of Healthcare: Eligibility for TRICARE, the military healthcare program, for a former spouse is tied to specific rules under the “20/20/20 Rule.” Missing this eligibility by a single day can mean the permanent loss of this valuable benefit.
• Survivor Benefit Plan (SBP) Issues: The SBP is an annuity that can provide a continuing income stream to a former spouse after the servicemember’s death. If a court order for SBP coverage is not properly drafted and submitted to the Defense Finance and Accounting Service (DFAS), the benefit can be lost forever.

In my decades of practice, I have seen the profound difference between a case that carefully accounts for these military-specific issues and one that does not. The outcome dictates the financial security of both parties for years to come. It is not an area where one can afford to learn on the job.

The Legal Process: From Filing to Final Decree in Virginia Beach

The military divorce process in Virginia Beach follows the state’s civil procedure but requires additional, critical steps involving federal agencies. The case is filed and heard in the Virginia Beach Circuit Court, but compliance with rules set by the Defense Finance and Accounting Service (DFAS) is essential for enforcing orders related to military pay and benefits, making it a dual-jurisdiction process.

Navigating an armed forces divorce in VA requires a methodical approach. While every case has its unique facts, the pathway generally follows a predictable sequence of events, managed through the local court system with deference to federal military regulations.

1. Meeting Virginia’s Residency and Separation Requirements: Before a divorce can be filed in Virginia, at least one party must be a resident and domiciliary of the Commonwealth for at least six months. For military members, Virginia Code § 20-97 provides a special provision: a servicemember stationed in Virginia for at least six months is presumed to be a resident. Additionally, you must be separated for a specific period—one year, or six months if you have no minor children and have a signed separation agreement.
2. Filing the Complaint for Divorce: The process officially begins when one spouse (the “Plaintiff”) files a “Complaint for Divorce” with the Virginia Beach Circuit Court. This document states the grounds for divorce (e.g., separation for the required period) and outlines what the plaintiff is requesting from the court (e.g., division of property, spousal support, etc.).
3. Service of Process: The other spouse (the “Defendant”) must be legally notified of the lawsuit. This is called “service of process.” Serving a civilian spouse in Virginia Beach is straightforward. Serving an active-duty servicemember, especially one who is deployed, presents unique challenges. This is where knowledge of the SCRA and international agreements like the Hague Convention can be vital. Proper service is a non-negotiable legal requirement.
4. The Discovery Phase: This is the information-gathering stage. Both sides exchange financial documents, answer written questions (Interrogatories), and may give sworn testimony outside of court (Depositions). For military cases, this means gathering Leave and Earnings Statements (LES), retirement points statements, TSP account information, and other military-specific financial data.
5. Negotiation and Settlement: The vast majority of my cases are resolved through a negotiated Marital Settlement Agreement (also known as a Property Settlement Agreement or PSA). This is a comprehensive contract that resolves all issues of the divorce: property division, debt allocation, spousal support, and crucially, the division of the military pension and SBP coverage. A well-drafted agreement is the cornerstone of a successful military divorce.
6. The Court Order and Final Decree: If an agreement is reached, it is submitted to the Virginia Beach Circuit Court for approval and incorporation into a Final Decree of Divorce. If no agreement is reached, the case proceeds to trial, where a judge will decide the contested issues.
7. Post-Decree Compliance with DFAS: This is a step many overlook. Simply having a Virginia court order dividing a military pension is not enough. That order must be drafted to comply with the strict requirements of the Defense Finance and Accounting Service (DFAS). The certified copy of the order must be sent to DFAS for them to process and begin making direct payments to the former spouse. Failure to comply with DFAS regulations will result in the order being rejected, causing significant delays and potential loss of payments.

Throughout this process, the Virginia Beach Circuit Court is the ultimate arbiter of state law issues, while DFAS acts as the gatekeeper for the implementation of orders affecting military pay. A knowledgeable Virginia Beach military divorce lawyer must be fluent in the languages of both institutions.

The SRIS Military Spouse Benefits & Entitlements Checklist

To demystify the division of military-related assets, we have developed this practical checklist. It is not a substitute for legal counsel but a tool to help you organize and identify the key benefits that must be addressed in your divorce proceedings. A comprehensive approach ensures no critical asset is overlooked.

In the midst of a divorce, it is easy to become overwhelmed. The emotional and logistical stress can cause critical details to slip through the cracks. In my practice, I emphasize a structured, methodical approach to ensure every right and entitlement is identified and properly handled. Use this checklist as a starting point for discussions with your legal counsel. Each item represents a significant financial or quality-of-life component that must be negotiated and legally secured in your final divorce decree.

Using this checklist systematically can transform a chaotic situation into a manageable process, ensuring your rights are asserted and protected at every stage.

Strategic Approaches to Military Divorce & Asset Division

A successful strategy in an armed forces divorce in VA hinges on proactive planning and a deep understanding of how federal and state laws interact. Key strategies involve choosing the correct jurisdiction, meticulously valuing and dividing complex military assets like pensions and the TSP, and leveraging all available benefits to create a fair and sustainable settlement for the future.

Simply going through the motions is not enough in a military divorce. A strategic approach is required to protect your interests. Over my years of practice in Virginia Beach, I have found that focusing on a few key areas can dramatically improve outcomes for my clients, whether they are the servicemember or the civilian spouse.

Strategy 1: Securing the Right Jurisdiction

This is the first, and often most important, strategic decision. A servicemember might be a legal resident of Texas, stationed in Virginia, and own property in Florida. A spouse might live in yet another state. Where you file for divorce can have a massive impact on the outcome, as property division laws vary significantly from state to state. Virginia’s equitable distribution laws may be more favorable to one party than another state’s community property laws. We analyze the specific facts of a case to determine the most advantageous jurisdiction in which to file, while ensuring all legal residency requirements under Virginia Code § 20-97 are met.

Strategy 2: The Art of Negotiating the Pension Division

The military pension is often the single largest asset in a long-term military marriage. A common point of negotiation is whether the former spouse will receive a percentage of the pension or a fixed dollar amount. A percentage is often preferred by the non-military spouse as it includes future cost-of-living adjustments (COLAs). The servicemember may prefer a fixed amount to cap their liability. Another crucial negotiation is how to handle disability pay. VA disability pay received in lieu of retired pay is generally not divisible by a state court. A properly structured settlement agreement must account for this, perhaps by providing for an “indemnification clause” that protects the former spouse if the servicemember elects to take disability pay that reduces the divisible pension amount.

Strategy 3: Maximizing Benefits Beyond the Pension

An effective strategy looks at the total picture. While the pension is paramount, other benefits can be used as powerful negotiating tools. For a spouse who does not meet the 20/20/20 Rule for lifelong TRICARE, we might negotiate for the servicemember to pay for a period of spousal support specifically designated to cover the cost of new health insurance. The SBP is another area for strategic planning. The cost of SBP premiums can be significant. The parties can agree to share the cost or use it as a bargaining chip in exchange for a larger share of another asset. The goal is to create a holistic settlement that addresses the complete financial and wellness needs of the parties post-divorce.

Strategy 4: Addressing the Thrift Savings Plan (TSP) Correctly

The TSP is the military’s 401(k)-style retirement account. Like the pension, only the marital share (contributions and earnings during the marriage) is divisible. A common error is failing to account for outstanding loans against the TSP. A strategic approach involves obtaining a full TSP statement, calculating the true marital value (net of any loans), and drafting a highly specific Retirement Benefits Court Order (RBCO) that the TSP administrators will accept. Ambiguity in the order can lead to rejection and costly legal fees to correct it.

In every case, the best strategy is one that is tailored to the specific family, their assets, and their goals. It requires a lawyer who not only knows the law but also understands the practical realities of military life and its unique financial landscape.

Common Mistakes to Avoid in an Armed Forces Divorce

In my two decades of handling military divorces in Virginia, I have seen recurring errors that can jeopardize financial futures. These mistakes often stem from a misunderstanding of the unique rules governing military benefits and can be easily avoided with knowledgeable guidance.

1. Ignoring the Survivor Benefit Plan (SBP): This is perhaps the most frequent and costly mistake. Many assume that if they are awarded a share of the pension, they will continue to receive it after the servicemember’s death. This is false. Pension payments stop upon the death of the retiree. The SBP is the only way to ensure a continued income stream. Failing to secure a court order for SBP coverage and failing to submit the “deemed election” to DFAS within one year of the divorce can result in a total loss of this vital protection.
2. Misunderstanding the “10/10 Rule”: Clients often panic, believing that if they were not married for 10 years that overlapped with 10 years of service, they are not entitled to any of the pension. This is incorrect. The 10/10 Rule only relates to the *method of payment*. If the rule is met, DFAS can make direct payments to the former spouse. If it is not met, the former spouse is still entitled to their court-ordered share, but the servicemember is responsible for making the payments directly. It’s a logistical issue, not an entitlement issue.
3. Accepting a Vague Settlement Agreement: A civilian divorce agreement might say, “The parties will divide the retirement accounts 50/50.” This language is dangerously inadequate for a military divorce. The agreement must explicitly name the “Uniformed Services Retired Pay,” state the formula for division (percentage or dollar amount), provide for SBP coverage, and include language that will be accepted by DFAS. Ambiguity is the enemy of enforcement.
4. Failing to Account for VA Disability Pay: A servicemember may, post-divorce, elect to receive non-divisible VA disability benefits, which requires them to waive an equivalent amount of their divisible military retired pay. This can significantly reduce or eliminate the payments the former spouse receives. A well-drafted settlement agreement anticipates this and includes a clause to indemnify, or “make whole,” the former spouse from another source of funds if this occurs.
5. Not Understanding TRICARE Rules: A former spouse may believe they will have TRICARE for life, only to discover they fail the 20/20/20 test by a matter of weeks. It is crucial to verify the exact dates of marriage and creditable service to confirm eligibility. Assuming eligibility without verification can lead to a sudden and unexpected loss of health coverage.

Glossary of Key Military Divorce Terms

USFSPA (Uniformed Services Former Spouses’ Protection Act)

A federal law (10 U.S.C. § 1408) that allows state courts to treat disposable military retired pay as marital property and divide it during a divorce.

SCRA (Servicemembers Civil Relief Act)

A federal law that provides various legal protections to active-duty servicemembers, including the ability to request a temporary stay (postponement) of civil court proceedings, such as divorce, if their military duties materially affect their ability to participate.

DFAS (Defense Finance and Accounting Service)

The agency of the Department of Defense responsible for processing and distributing pay for military members and retirees. DFAS reviews and executes court orders that divide military retirement pay.

SBP (Survivor Benefit Plan)

An annuity purchased by a servicemember (with premiums deducted from retired pay) that provides a continuing income to a named beneficiary (such as a former spouse) after the retiree’s death. It is not automatic and must be elected and ordered by the court.

Disposable Retired Pay

The gross retired pay less authorized deductions, which most notably includes amounts waived to receive VA disability pay. This is the amount that is subject to division by a court under the USFSPA.

TSP (Thrift Savings Plan)

A defined contribution retirement savings and investment plan for federal employees and members of the uniformed services, similar to a civilian 401(k). The marital share of the TSP is a divisible asset in a divorce.

20/20/20 Rule

A rule that grants full military benefits, including TRICARE health coverage and base privileges, to an un-remarried former spouse if they were married to the servicemember for at least 20 years, the servicemember had at least 20 years of creditable service, and there was at least a 20-year overlap between the marriage and the service.

Common Scenarios & Questions from Military Families

Real-life situations are rarely straightforward. Here are a few common scenarios I encounter in my Virginia Beach practice, reflecting the questions and concerns military families face.

Scenario 1: “My husband is deployed to the Middle East and just told me he wants a divorce. Can I even start the process?”

Yes, you can begin the divorce process, but with important caveats. You can file the Complaint for Divorce in the Virginia Beach Circuit Court, assuming you meet the residency requirements. The challenge will be “serving” him with the legal papers while he is deployed. Standard service methods may not work, and we may need to coordinate with his command or use provisions under international law. Furthermore, under the SCRA, he will likely be able to request a stay of the proceedings until he returns, or at least until he can meaningfully participate. You can start the process, but you should anticipate a potential delay.

Scenario 2: “We were married for 12 years, and my wife was in the Navy for all 12. Does the 10/10 rule mean I get nothing from her pension?”

No, this is a common and dangerous misconception. You are absolutely entitled to an equitable share of the marital portion of her pension. The “10/10 Rule” (10 years of marriage overlapping 10 years of service) only dictates whether DFAS will make payments *directly* to you. Since you meet this rule (12 years > 10 years), upon providing a valid court order, DFAS will pay your share directly from her retirement pay. Even if you had only been married for 9 years, you would still be entitled to your share; the difference would be that your ex-spouse would be responsible for paying you directly each month. The entitlement is granted by the Virginia court, not by DFAS.

Scenario 3: “My spouse is retiring soon and is eligible for a large VA disability rating. They told me this means there will be no pension left for me to get a share of. Is that right?”

This is a serious issue that requires careful legal navigation. It is true that for every dollar a retiree receives in non-divisible VA disability pay, they must waive a dollar of their divisible military retired pay. This can dramatically reduce the “disposable retired pay” available for division. A seasoned military divorce attorney will address this by negotiating an “indemnification clause” in your settlement agreement. This clause would state that if the servicemember takes an action (like waiving retired pay for VA disability) that reduces your pension payment, they must personally reimburse you for the difference from another source of income. This protects your financial award and must be drafted with precision.

Frequently Asked Questions (FAQ)

What are the grounds for divorce in a Virginia military case?
The most common ground is living separate and apart without cohabitation for a period of one year, or six months if there are no minor children and you have a signed settlement agreement. Virginia also has fault-based grounds like adultery or desertion, but these are less common and more complex to prove.

How is child custody determined when one parent is in the military?
Custody is determined based on the “best interests of the child,” just as in a civilian divorce. However, Virginia courts must consider the unique challenges of military life, such as deployments and frequent relocations. A detailed and flexible parenting plan is essential, often including provisions for communication during deployment and arrangements for out-of-state visitation.

Can a servicemember’s deployment stop a divorce?
It can temporarily pause it. Under the SCRA, a servicemember can request a stay of proceedings for at least 90 days if their military duties materially interfere with their ability to appear in court or defend themselves. The stay is not automatic or indefinite, but it is a common factor in military divorce timelines.

What is the difference between the Survivor Benefit Plan (SBP) and a life insurance policy?
SBP is an annuity tied directly to the military pension, providing a lifetime income stream to the beneficiary. A life insurance policy provides a one-time, lump-sum death benefit. While life insurance can be a useful tool, it is not a replacement for SBP, which is inflation-protected and guaranteed for life (unless the beneficiary remarries before age 55).

How is child support calculated for a military member?
Child support is calculated using the Virginia child support guidelines, which consider both parents’ gross incomes. For a servicemember, “gross income” includes base pay as well as non-taxable allowances like Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS). It is critical to use the correct income figures to ensure a fair calculation.

Do I lose my military ID and base access after the divorce?
It depends. If you qualify under the 20/20/20 Rule, you can retain your ID card (as an un-remarried former spouse) and your base privileges. If you do not meet this rule, you will lose these privileges upon the finalization of the divorce.

What happens to the Thrift Savings Plan (TSP) in a Virginia divorce?
The marital share of the TSP is subject to equitable distribution. The marital share is the portion that accumulated between the date of marriage and the date of final separation. A specific court order, known as a Retirement Benefits Court Order (RBCO), is required to direct the TSP administrators to divide the account.

Can I get spousal support (alimony) in a military divorce?
Yes. Spousal support is determined based on the factors listed in the Code of Virginia, such as the needs of the requesting spouse, the ability of the other spouse to pay, the duration of the marriage, and other financial considerations. The servicemember’s income, including allowances, is considered when determining spousal support.

How long does a military divorce take in Virginia Beach?
The timeline varies greatly. An uncontested divorce with a signed agreement can be finalized relatively quickly after the mandatory separation period is met. A contested case involving disputes over assets, custody, and SCRA delays can take much longer, often a year or more.

Does a prenuptial agreement affect a military divorce?
Yes, a valid and enforceable prenuptial agreement can significantly alter the outcome. It can define what is considered separate vs. marital property and may waive rights to assets like the military pension or spousal support. The validity of the agreement would be a key issue in the case.

What if my spouse and I agree on everything? Do we still need lawyers?
While it is possible to handle an uncontested divorce on your own, it is highly inadvisable in a military case. The risk of drafting an agreement that is not compliant with DFAS regulations or that overlooks a critical benefit like SBP is very high. Having experienced counsel review or draft the agreement provides crucial protection.

My spouse is stationed overseas, but I live in Virginia Beach. Where do we file for divorce?
As long as you meet the six-month residency requirement for Virginia, you can file for divorce in the Virginia Beach Circuit Court. Virginia can have jurisdiction over the divorce itself. However, establishing jurisdiction over your spouse personally to divide the military pension may require a more detailed legal analysis.

Is “disability separation pay” divisible in a divorce?
Generally, no. Disability pay, whether from a disability retirement or a VA rating, is typically not considered marital property and cannot be divided by a state court. This is a critical distinction from longevity-based retired pay.