Consequences & Stakes: What’s on the Line in a Virginia Military Divorce

The consequences of a military divorce extend far beyond the emotional toll, directly impacting long-term financial stability, healthcare access, and parental rights. Unlike civilian divorces, the division of assets is governed by both Virginia’s equitable distribution laws under Va. Code § 20-107.3 and overriding federal laws like the USFSPA, which control how military retirement pay can be treated as marital property and divided by state courts. The stakes are immense.

In my experience, the single most significant financial asset in many military divorces is the servicemember’s retired pay. This is not a simple 50/50 split. Virginia law treats the portion of the pension earned during the marriage as marital property, subject to equitable distribution. The federal USFSPA, codified at 10 U.S.C. § 1408, permits state courts to make this division, but it also imposes strict limitations. For example, a court cannot award more than 50% of the servicemember’s disposable retired pay to the former spouse (or 65% if there are also arrears for child or spousal support).

Another critical stake is the Survivor Benefit Plan (SBP). The SBP is an annuity that provides a continuing stream of income to a former spouse after the servicemember’s death. It is not automatic. The court must order the servicemember to elect former spouse coverage, and specific paperwork must be filed with the Defense Finance and Accounting Service (DFAS) within one year of the divorce decree. Missing this deadline is an irreversible error that can leave a former spouse with nothing upon the retiree’s passing. This is a point I have had to stress countless times; it is one of the most common and devastating mistakes I see.

Further, the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. § 3901 et seq., introduces another layer. This federal law is designed to protect active-duty members from being disadvantaged in legal proceedings due to their service. It allows a servicemember to request a “stay,” or temporary halt, of divorce proceedings if their military duties materially affect their ability to participate. While this protection is vital, it can also lead to significant delays, impacting the lives of both spouses and any children involved.

Finally, there are the “soft” benefits, which carry immense value. Access to TRICARE health insurance, commissary, and exchange privileges post-divorce are not guaranteed. These are governed by the “20/20/20 Rule,” which requires a 20-year marriage, 20 years of creditable military service, and a 20-year overlap between the two. For spouses who do not meet this high bar, the loss of affordable healthcare can be a sudden and significant financial shock. Failing to plan for this transition is a frequent source of post-divorce hardship.

The Virginia Military Divorce Process: A Step-by-Step Overview

The legal process for a military divorce in Virginia follows the state’s standard divorce procedures but is punctuated by unique requirements and considerations involving federal law. The process begins with establishing jurisdiction in a Virginia Circuit Court, proceeds through filing and service of process (which can be complicated by deployment), and culminates in a final decree that must be meticulously drafted to be enforceable by military authorities like DFAS.

Here is a breakdown of the typical journey, as handled in Virginia’s courts:

1. Establishing Jurisdiction: Before anything else, we must determine if Virginia is the proper venue. Under state law, a divorce can be filed in Virginia if at least one party is a resident and domiciliary of the Commonwealth for at least six months prior to filing. For military families, this is nuanced. A servicemember stationed in Virginia (e.g., at Norfolk Naval Station, Fort Belvoir, or Quantico) is considered a resident for divorce purposes. The non-military spouse can also establish residency here, even if the servicemember is stationed elsewhere. This first step is foundational.
2. Filing the Complaint for Divorce: Once jurisdiction is confirmed, one spouse (the Plaintiff) files a “Complaint for Divorce” with the appropriate Virginia Circuit Court. This document outlines the legal grounds for the divorce (e.g., separation for the required period, adultery) and states what relief is being sought regarding property, support, and custody.
3. Service of Process: The other spouse (the Defendant) must be formally notified of the lawsuit. This is called “service of process.” For a servicemember stationed in the U.S., this is straightforward. However, if the servicemember is deployed overseas, the process can become complicated, sometimes requiring procedures under international agreements like the Hague Convention. The SCRA also comes into play here, as a servicemember can sometimes waive personal service but must do so carefully to avoid giving up important rights.
4. The Discovery Phase: This is the information-gathering stage. Both sides exchange financial documents and other relevant information. For military cases, this means obtaining the servicemember’s Leave and Earnings Statement (LES), retirement point statements, and other military-specific financial records. This data is essential for accurately calculating support and dividing assets.
5. Negotiation and Settlement vs. Litigation: Most cases, in my experience, are resolved through a negotiated Marital Settlement Agreement (also known as a Property Settlement Agreement or PSA). This is a comprehensive contract that details the division of all assets, including the military pension, SBP elections, debts, custody arrangements, and support. If an agreement cannot be reached, the case proceeds to litigation, where a judge in the Virginia Circuit Court will decide these issues at trial.
6. The Final Decree of Divorce: Once an agreement is signed or a judge has ruled, the court issues a Final Decree of Divorce. For military divorces, this document must contain specific, precise language. To divide a military pension, for example, the decree must include the proper formula and wording that the Defense Finance and Accounting Service (DFAS) will recognize and enforce. Vague or incorrect language will result in DFAS rejecting the order, creating a post-divorce nightmare of trying to get the order amended.
7. Post-Decree Implementation: After the divorce is final, there are critical follow-up steps. The properly worded court order must be submitted to DFAS to initiate direct payment of retired pay to the former spouse. SBP election forms must be filed. Titles to property must be transferred. This implementation phase is just as important as the divorce proceeding itself.

The SRIS Military Benefits & Entitlements Checklist Tool

In a military divorce, overlooking a single benefit can have lifelong financial consequences. To prevent this, we developed The SRIS Military Benefits & Entitlements Checklist. This practical tool ensures that every key military-related asset and benefit is identified, valued, and addressed during your divorce negotiations or litigation, leaving no stone unturned.

Over the years, I’ve seen too many individuals—both servicemembers and spouses—realize too late that a crucial benefit was forgotten in their divorce decree. The purpose of this checklist is to force a systematic review of the complex benefits package that comes with military service. Use this guide with your legal counsel to ensure a comprehensive approach.

How to Use The Checklist: A Step-by-Step Guide

For each item below, determine its status: Is it applicable to your situation? Have you obtained the necessary documentation? Has it been addressed in your settlement negotiations?

Part 1: Retirement & Savings

• Disposable Retired Pay:
  • [ ] Have we obtained a hypothetical retired pay letter or statement to estimate the value?
  • [ ] Have we defined the “marital share” (the portion earned during the marriage)?
  • [ ] Is the division formula clearly stated (e.g., percentage, specific dollar amount)?
  • [ ] Does our proposed court order meet DFAS language requirements?
• Thrift Savings Plan (TSP):
  • [ ] Have we obtained the most recent TSP statement?
  • [ ] Have we calculated the marital portion (contributions and gains during the marriage)?
  • [ ] Is a separate Retirement Benefits Court Order (RBCO) being prepared for the TSP division?
• Survivor Benefit Plan (SBP):
  • [ ] Have we decided on “former spouse” SBP coverage?
  • [ ] Who will pay the SBP premium? Is this stated in the agreement?
  • [ ] Do we have a plan to submit the DD Form 2656-1 and the court order to DFAS within the one-year deadline?
• VA Disability Compensation:
  • [ ] Has the servicemember received a VA disability rating?
  • [ ] Do all parties understand that VA disability pay is NOT divisible by the court and can reduce the amount of divisible retired pay?
  • [ ] Have we considered an indemnification clause in the agreement to protect the former spouse if retired pay is later waived for disability pay?

Part 2: Active Duty & Transition Benefits

• Basic Allowance for Housing (BAH) & Basic Allowance for Subsistence (BAS):
  • [ ] How will these tax-free allowances be factored into child and spousal support calculations? Virginia courts can and do consider them as income.
• TRICARE Health Benefits:
  • [ ] Does the former spouse meet the 20/20/20 Rule for continued TRICARE coverage?
  • [ ] If not, what is the plan for future health insurance (e.g., Continued Health Care Benefit Program (CHCBP), Affordable Care Act marketplace)?
• Commissary, Exchange, and MWR Privileges:
  • [ ] Does the former spouse meet the 20/20/20 Rule or the 20/20/15 Rule for these privileges?
• GI Bill Benefits:
  • [ ] Has the servicemember transferred any Post-9/11 GI Bill benefits to a spouse or children?
  • [ ] Do all parties understand that this transfer can be revoked by the servicemember at any time, even after divorce, unless specifically prohibited in a binding settlement agreement?

Critical Legal Strategies for Your Military Divorce

A successful outcome in a Virginia military divorce hinges on proactive, informed legal strategy, not reactive decision-making. Key strategies involve carefully selecting the state for filing (jurisdiction), structuring the division of retired pay to account for future contingencies like disability pay, and securing future income streams through mechanisms like the Survivor Benefit Plan (SBP).

In my practice, I emphasize that the initial strategic decisions often have the most lasting impact. What follows are some of the core strategic pillars we consider in every military divorce case we handle.

Strategy 1: Winning the “Jurisdictional Tug-of-War”

Where you file for divorce matters immensely. Different states have different laws on issues like spousal support and the division of property. Virginia, for instance, is an equitable distribution state. A servicemember might be a legal resident of Texas, stationed in Virginia, and married to a spouse who just moved to Florida. This creates three potential states for the divorce. We strategically analyze which state’s laws are most favorable to our client’s position regarding the division of the military pension and spousal support rules. For a non-military spouse residing in Virginia for over six months, filing here can be a significant advantage, as it grounds the case in local courts they can easily access, pursuant to Va. Code § 20-97.

Strategy 2: Insulating Against the VA Disability Waiver

One of the greatest financial risks for a non-military spouse is the “VA waiver.” A military retiree can waive a portion of their taxable, divisible retired pay in order to receive an equivalent amount of non-taxable, non-divisible VA disability compensation. This can unilaterally reduce the pension payments the former spouse receives. A crucial strategy is to negotiate and include an “indemnification clause” in the Marital Settlement Agreement. This clause states that if the servicemember later takes action (like a VA waiver) that reduces the pension payments to the former spouse, they must personally pay the former spouse directly to make up for the shortfall. This contractual protection is not automatic; it must be fought for and included in the final agreement.

Strategy 3: The Art of Negotiating the Survivor Benefit Plan (SBP)

As discussed, the SBP is a critical financial safety net. A common point of contention is who should pay the premium, which can be up to 6.5% of the chosen base amount. A powerful negotiating strategy is to tie the SBP to other assets. For example, the non-military spouse might agree to a slightly smaller share of another asset in exchange for the servicemember agreeing to pay the full SBP premium. Alternatively, the premium cost can be factored into spousal support calculations. The key is to treat the SBP and its cost not as an afterthought, but as a central bargaining chip in the overall financial settlement.

Strategy 4: Leveraging the Servicemembers Civil Relief Act (SCRA) Correctly

The SCRA can be used as both a shield and a sword. For a servicemember facing divorce while deployed, invoking the SCRA to request a stay of the proceedings is a vital protection. It prevents a default judgment and allows them to participate fully when they return. For the non-military spouse, however, this can mean a long, frustrating delay. The strategy here is to work proactively. We might negotiate a temporary support and custody order before the servicemember deploys, or work with opposing counsel to see if the servicemember is willing to sign a waiver of the SCRA stay for specific, limited purposes, allowing the case to move forward on less contentious issues.

Common Mistakes to Avoid in a Virginia Military Divorce

In my years of practice, I have seen recurring errors that can jeopardize a client’s financial future. The most common mistakes include misunderstanding the “10/10 Rule,” failing to secure the Survivor Benefit Plan (SBP) correctly, ignoring the impact of VA disability pay, and using vague language in the final divorce decree that is unenforceable by military pay authorities.

Navigating a military divorce is like traversing a minefield; one wrong step can have explosive consequences. Avoiding these common pitfalls is essential for a stable post-divorce future.

1. Misinterpreting the “10/10 Rule”: This is perhaps the most pervasive myth. Many believe that if the marriage did not last 10 years concurrent with 10 years of military service, the former spouse gets no part of the pension. This is false. A Virginia court can award a share of the pension even after only a few years of marriage. The 10/10 Rule only dictates whether the former spouse can be paid their share directly from DFAS. If the rule isn’t met, the court can still order the servicemember to make the payments personally. Relying on this myth can cause a spouse to give up a valuable asset they are entitled to.
2. Failing the SBP One-Year Deadline: A court can order a servicemember to elect “former spouse” SBP coverage, but this order is not self-executing. The former spouse (or their attorney) must submit a “deemed election” request to DFAS, including a copy of the court order, within one year of the divorce. If this deadline is missed, the SBP election is permanently lost. I have seen this tragedy unfold, and it is entirely preventable with diligent follow-through.
3. Ignoring the Thrift Savings Plan (TSP): The TSP is a government-sponsored retirement and savings plan, similar to a civilian 401(k). The marital share of the TSP is a significant asset that is separate from the military pension. It is a common mistake to focus solely on the pension and forget to address the division of the TSP, leaving a substantial amount of money off the negotiating table.
4. Accepting Vague Language in the Settlement Agreement: A divorce decree that says the former spouse gets “50% of the military pension” is dangerously vague. DFAS requires precise language. The order must specify the division formula, state whether it’s a percentage or a fixed dollar amount, and provide all necessary identifying information for both parties. Using a generic divorce agreement template is a recipe for disaster; the language must be tailored for military benefits.
5. Not Planning for the Loss of TRICARE: For a former spouse who does not meet the strict 20/20/20 rule for lifetime TRICARE benefits, the loss of health insurance upon divorce can be a catastrophic financial blow. A common mistake is failing to plan for this transition. The cost of future health insurance should be a factor in spousal support negotiations, and the option to purchase temporary coverage through the Continued Health Care Benefit Program (CHCBP) must be explored immediately.

Glossary of Key Military Divorce Terms

USFSPA (Uniformed Services Former Spouses’ Protection Act)

A federal law that allows state courts to treat disposable military retired pay as marital property and divide it in a divorce. It does not automatically grant any portion of retired pay to a former spouse; it simply permits the state court to do so.

DFAS (Defense Finance and Accounting Service)

The agency of the Department of Defense that is responsible for paying servicemembers and retirees. DFAS is the entity that processes court-ordered payments of retired pay and SBP benefits to former spouses.

SBP (Survivor Benefit Plan)

An annuity purchased by a military retiree to provide a continuous income (a percentage of their retired pay) to a named survivor (such as a former spouse) after the retiree’s death. Coverage for a former spouse is not automatic and must be ordered by the court and elected properly.

Disposable Retired Pay

The gross amount of a member’s retired pay minus certain deductions, most notably any amount waived in order to receive VA disability pay. This is the maximum amount of pay that is divisible in a divorce under the USFSPA.

SCRA (Servicemembers Civil Relief Act)

A federal law that provides various legal protections to active-duty servicemembers, including the ability to request a temporary pause (“stay”) in civil court proceedings, such as a divorce, if their military duties prevent them from adequately participating.

LES (Leave and Earnings Statement)

The military’s equivalent of a civilian pay stub. It provides a detailed breakdown of a servicemember’s pay, allowances (like BAH and BAS), and other financial information essential for calculating support.

TSP (Thrift Savings Plan)

A defined contribution retirement savings plan for federal employees and members of the uniformed services. It is separate from the military pension and is divisible in a divorce as a marital asset.

Common Scenarios & Questions from Our Clients

Real-world situations rarely fit into neat boxes. Over the decades, I’ve guided clients through countless unique scenarios. Here are a few common situations that illustrate the complexities we handle and the questions people often ask.

Scenario 1: The Long-Term Spouse Nearing Retirement

“My husband is active duty Navy, stationed in Norfolk, and set to retire in two years after 22 years of service. We’ve been married for 18 years, and I’ve been a stay-at-home parent. He says since we haven’t been married for 20 years, I won’t get any of his retirement or healthcare. Is that true?”

My Analysis: This is a classic case of misinformation. Your 18-year marriage means you do not qualify for lifetime TRICARE under the 20/20/20 rule. This is a serious issue we must plan for, potentially by negotiating higher spousal support to cover your future insurance costs. However, his claim about retirement pay is incorrect. Because you were married for 18 of his 22 service years, a Virginia court will consider a very large portion of his pension to be marital property. You are absolutely entitled to seek an equitable share of it under Virginia law. Furthermore, you easily meet the 10/10 Rule, meaning your share can be paid directly from DFAS. Securing your SBP rights will also be a top priority.

Scenario 2: The Deployed Servicemember

“I’m in the Army, currently deployed in Europe. My wife, who lives near Fort Belvoir, just filed for divorce in Fairfax County. I can’t get back to Virginia for court dates. Can she get a divorce and take half of everything while I’m gone?”

My Analysis: This is precisely the situation the Servicemembers Civil Relief Act (SCRA) was designed to prevent. You cannot be held in default. We would immediately file a request with the Fairfax Circuit Court for a stay of proceedings, explaining that your military duties materially prevent you from participating in your defense. Typically, a court will grant an initial stay of at least 90 days. This does not make the divorce go away, but it pauses the case, preventing your wife from moving forward without your involvement. It gives us time to strategize and prepare for your return or arrange for you to participate remotely if possible.

Scenario 3: The Dual-Military Couple

“My wife and I are both active duty Air Force, stationed at Langley. We’re getting a divorce. We both have our own military careers and will have our own pensions. How does that work? Do they just cancel each other out?”

My Analysis: This is an increasingly common and complex scenario. The pensions do not simply “cancel out.” Each of your pensions is a separate marital asset to the extent it was earned during the marriage. For example, the marital share of your pension is subject to her claim, and the marital share of her pension is subject to your claim. We must calculate the marital share of *both* pensions. The court can then divide each one, or it might decide to offset the awards. For example, if your pension’s marital share is valued higher than hers, she might receive a portion of yours, or you might have to buy out her interest by giving her a larger share of another asset, like the equity in your home. This requires a very careful and detailed financial analysis.

Frequently Asked Questions (FAQ)

1. Can I file for divorce in Virginia if my servicemember spouse is stationed overseas?
Yes, provided you meet Virginia’s residency requirement. If you have been a resident of Virginia for at least six months prior to filing, you can file in a Virginia Circuit Court, regardless of where your spouse is currently stationed.

2. What is the difference between marital share and total retirement pay?
Total retirement pay is based on a servicemember’s entire career. The “marital share” is the portion of the retirement pay that was earned from the date of marriage to the date of separation. Virginia courts can only divide the marital share.

3. How is child support calculated when one parent is in the military?
Child support in Virginia is calculated using state guidelines that consider both parents’ incomes. For a servicemember, “income” includes their base pay as well as non-taxable allowances like Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS), which can significantly increase the support obligation.

4. Will I lose my military ID card and base access when we divorce?
Yes, upon the finalization of the divorce, you will lose your dependent military ID and the associated base access privileges (commissary, exchange, etc.) unless you qualify independently under the 20/20/20 or 20/20/15 rules.

5. My spouse is receiving VA Disability Pay. Can I get a portion of that?
No. Under federal law, VA disability payments are not marital property and cannot be divided by a state court in a divorce. Furthermore, if a retiree waives retired pay to receive disability pay, it reduces the amount of money available for division, an issue that must be handled with a carefully drafted clause in your settlement agreement.

6. What happens to the Thrift Savings Plan (TSP) in a divorce?
The TSP is treated like a 401(k). The portion of the account that accumulated during the marriage is a marital asset subject to division. This requires a specific court order, called a Retirement Benefits Court Order, to be submitted to the TSP for processing.

7. How long does a military divorce take in Virginia?
If the divorce is uncontested and both parties agree on all terms, it can be finalized relatively quickly after the mandatory separation period (six months with no minor children, one year with minor children). However, contested cases or those complicated by deployment and the SCRA can take much longer, often over a year.

8. Is adultery a bar to receiving a portion of the military pension in Virginia?
No. While adultery can be a bar to receiving spousal support in Virginia under certain circumstances, it does not affect the equitable distribution of marital property. The marital share of a military pension is considered property, so a claim to it is not defeated by fault.

9. What is the “Frozen Benefit Rule”?
This is a provision of the National Defense Authorization Act that changed how pensions are divided. For divorces after December 23, 2016, the non-military spouse’s share is typically based on the servicemember’s rank and years of service at the time of divorce, not at the time of retirement. This prevents the former spouse from benefiting from post-divorce promotions.

10. Can I still get TRICARE health insurance after the divorce?
Only if you meet the stringent 20/20/20 Rule: a 20-year marriage, 20 years of military service by your spouse, and a 20-year overlap. If you do not meet this rule, your TRICARE coverage will end upon the finalization of the divorce. You may be eligible to purchase temporary continuation coverage (CHCBP) for up to 36 months.

11. My spouse transferred his GI Bill benefits to me. Can he take them back?
Yes. The servicemember retains the right to modify or revoke the transfer of Post-9/11 GI Bill benefits at any time, for any reason, even after the divorce is final. The only way to prevent this is to include specific language in a binding settlement agreement where the servicemember agrees not to revoke the transfer.

12. Do we have to go to court to get a military divorce?
While all divorces must ultimately be approved and finalized by a judge in a Circuit Court, you may not have to physically appear in a courtroom. If you can reach a comprehensive settlement agreement that resolves all issues, the divorce can often be finalized based on the submission of paperwork alone.