serviceman-removing-wedding-ringAny divorce can be difficult. However, military divorces are often more complex, especially when one spouse is deployed and unavailable for legal proceedings. In these cases, it’s essential to protect your future by working with an experienced Virginia divorce lawyer who can make sure your rights are protected.

Reasons to File for Military Divorce

There are five grounds for divorce in Virginia. You may seek a divorce if there is (a):

  1. Felony conviction in the past 12 months
  2. Cruelty, desertion, or violence in the past 12 months
  3. Proof of adultery within the last five years
  4. Separation of at least one year for couples with minor children
  5. Separation of at least six months for couples without children
The separation period can include time deployed on active service overseas. If both parties can agree on the reason for the divorce, the filing can proceed uncontested. This does not mean the military divorce is simple. But, it generally means it can proceed more smoothly. 

Where to File for Divorce in Virginia

The spouse requesting a divorce typically files for divorce in the state where they reside. Military divorces are different because service members may be deployed elsewhere. If one spouse is an active service member, either spouse may file for divorce in Virginia as long as one of the partners has resided in or been stationed in Virginia for at least six months. For purposes of divorce law, the residence includes military ships ported out of Virginia. The six-month period can be during the active member’s current deployment or immediately before it.

Postponed Divorce Proceedings for Active Duty Members

Under civilian conditions, the other party must be notified of the divorce filing in a timely manner. They must then respond within a specified timeframe. If they do not respond in time, the requesting spouse can file for a default divorce. If the active service member signs a waiver of acknowledgment, the divorce can proceed uncontested and without delay. 

This timeline could be problematic for military members deployed away from home. It may not be possible to reach them, or they may not be available to acknowledge receipt. Accordingly, the Servicemembers Civil Relief Act protects the military spouse by allowing an active duty member to request a stay of proceedings for at least 90 days if they want to defend against a default judgment and need to be present for the proceedings. 

How Military Divorce Affects Benefits and Assets Distribution

Like civilian divorces, military divorces involve the division of marital property. Part of this is governed by the Uniformed Services Former Spouse Protection Act (USFSPA). The act outlines continued spousal eligibility for commissary, exchange, and health care benefits after a divorce. 

The law also states that a military pension is a marital asset to split in a divorce. For example, if you were married for at least ten years and one spouse served in the military for at least ten years, then the 10-10 rule applies, and the non-military spouse may receive their share of retirement pay directly from the Defense Finance Accounting Service (DFAS). 

For survivor benefits upon their death, active military members have a choice. They may award the full benefit amount to the spouse they are divorcing. They may also choose to give the benefits to a future spouse if they remarry. It is best to discuss these options with an experienced military divorce lawyer. 

Child Custody in Military Divorces

Concerns around child custody can be complex. Even if an active military member may be fit to parent, they may often be deployed away from home. This can make it difficult to achieve equal custody. One option is to name family members who may have temporary custody while the active service member is on duty. 

Other divorce issues, such as alimony and child support, may also be different in a military divorce. Accordingly, contacting a Virginia family law attorney who understands the complexities of military divorces and can help you through the process is essential.