Fairfax
Military Divorce Lawyer

General Guide to Military Divorce Laws in Virginia

If one or both spouses going through a divorce are retired or active servicemembers, there are certain Federal and state laws that must be followed. For example, there are certain rules applicable to a division of servicemember’s military retirement, disability pay, survivor benefits plan, etc. These cases can be legally complex. It is important to discuss your case with an experienced Fairfax military divorce lawyer who can advise you of your rights and obligations. This guide from Raheen Family Law provides you with some general information on some of the issues that come up in a military divorce case.

Understanding Military Divorce vs. Civilian Divorce

Military divorce differs from civilian divorce in several important ways. While both types of divorce proceedings address similar issues like child custody, child support, and spousal support, military divorce cases involve additional considerations unique to military life. Service members and military spouses must consider factors such as deployment schedules, military benefits, and federal protections under the Servicemembers Civil Relief Act.

Military families face unique challenges that civilian divorce cases typically don’t encounter. The frequent relocations, extended deployments, and special retirement systems require divorce attorneys who are well versed in both Virginia law and federal regulations. An experienced military divorce lawyer understands how these factors affect military families and can protect your rights throughout the divorce process.

Types of Military Divorce in Northern Virginia

Contested Divorce

A contested divorce occurs when spouses cannot agree on key issues such as marital property division, child custody, or spousal support. In military divorce situations, disagreements often arise over how to divide military retirement benefits or whether the former spouse should receive coverage under the Survivor Benefit Plan. These cases require skilled attorneys who can represent clients effectively in court.

Uncontested Divorce and No-Fault Divorce

An uncontested divorce happens when both parties reach agreement on all terms before going to court. Many military members prefer this approach because it’s faster and less expensive. A no-fault divorce in Virginia requires either a six-month separation agreement if the couple has no minor children, or a one-year separation if children are involved. This type of divorce can be streamlined with proper prenuptial agreements or postnuptial agreements in place.

No-fault divorce options give military families a way to end their marriage without proving wrongdoing by one spouse. An uncontested divorce combined with a no-fault divorce approach often provides the smoothest path forward for military spouses who want to maintain an amicable relationship, especially when children are involved.

Military Retirement Division in Divorce

Federal law

Under Federal law, specifically the Uniformed Services Former Spouses Protection Act (“USFSPA”), state courts in a divorce case have the authority to divide a servicemember’s “disposable retired pay.” Disposable retired pay is defined under the USFSPA as gross retired pay minus: (a) recoupments or repayments to the federal government, (b) deductions from retired pay for court-martial fines or forfeitures, (c) disability pay benefits, and (d) Survivor Benefit Plan premiums.

Under USFSPA, the military retirement pay subject to a division is calculated based on the member’s rank and years of service at the time the court order dividing military retired pay (typically the final order of divorce) is entered. In other words, the former spouse’s share of the military retirement is “frozen” as of the date of the divorce. If the servicemember receives promotions or longevity pay increases after the divorce decree, the former spouse’s share does not benefit from those increases.

The Defense Finance and Accounting Service (“DFAS”) can directly pay the former spouse his or her share of the member’s military retirement pay if the marriage overlapped with 10 years or more of the member’s military service (“10-year rule”). However, if the 10-year rule is not met, it does not mean that the former spouse will not be paid his or her share, instead, the servicemember will have to pay the former spouse the share directly. DFAS will not pay the former spouse in this case.

Virginia Law

If the military retirement was earned during the marriage (before the final separation), the retirement is considered “marital property” and the former spouse will be awarded a portion (which is typically one-half) of the “marital share.” Marital share is determined based on a fraction, the numerator of which is the total number of months the parties were married (prior to separation) during the servicemember’s creditable military service, divided by the total number of months of the member’s creditable military service. When the servicemember is already retired at the time of separation, the former spouse’s share of the military retired pay is easily determined based on the fraction mentioned above. However, the more complicated cases involve where the servicemember spouse has still not retired at the time of the spouse’s separation. In these cases, the former spouse’s share is frozen as of the date of the court order dividing the military retired pay (see the Federal Law paragraph above).

Military Disability Pay

A servicemember may receive one of two different types of disability pay: (1) military disability retired pay; and (2) VA disability compensation.

Military disability retired pay is available for servicemembers who are sufficiently disable (at least 30 percent) and who cannot perform their duties. VA disability compensation is meant to cover injuries that occurred while on active duty or which were made worse while on duty.  VA disability does not look at how the injury affects the servicemember’s ability to perform his or her military duties. Both Military disability retired pay and VA disability compensation are excluded from the USFSPA definition of disposable retired pay, and therefore these cannot be divided between spouses in a divorce case.

If a servicemember waives any portion of his or her military retired pay in exchange for VA disability, the amount waived is subtracted from the military retirement, which results in a reduction in or even complete elimination of former spouse’s share of the military retirement. Therefore, the former spouse may lose out on hundreds or thousands dollars per month of servicemember’s military retired pay. However, recent changes in the law allows a servicemember with 20 years of service and a service-connected disability rating of 50% or more to be eligible for full VA disability benefits and full military retirement pay (concurrent retirement and disability pay). In such a case the former spouse’s share of the military retirement is not affected.

In the absence of concurrent retirement and disability pay, the former spouse may want to negotiate a Property Settlement Agreement that would account for the loss in former spouse’s share of the servicemember’s military retired pay. Until recently, some Virginia court took the position that even if the servicemember reduced the former spouse’s share of the retired pay by collecting a portion of the military retirement in form of disability, that the servicemember will have to indemnify the former spouse for the reduction. However, in 2017, the United States Supreme Court in Howell v. Howell, 137 S. Ct. 1400 (2017) held that such indemnification orders are unconstitutional. 

In light of Howell v. Howell, the parties may want to address this issue in a Property Settlement Agreement, such as ask for an additional award of spousal support to account for the disability payments received by the servicemember or ask for a reservation to seek spousal support in the future, if the servicemember has not yet retired and claimed disability, but may do so in the future.

Survivor Benefit Plan

Survivor benefit plan (SBP) is an annuity plan, which pays a monthly payment to the designated beneficiary or beneficiaries after the servicemember dies. SBP payments begin at the death of the servicemember and continues for the life of the surviving spouse or former spouse (if a SBP election was made for the former spouse) unless the spouse/former spouse remarries before age 55, in which case the payments terminate. If the surviving spouse/former spouse remarries after age 55, the payments will continue. In the event the SBP coverage is for a child or children, SBP payments continue until the child reaches age 18. However, if the child is unmarried and a full-time student, the payments continue until the age of 22.

The Defense Finance and Accounting Services (DFAS) automatically deducts the monthly premiums for SBP coverage from the servicemember’s retirement pay. The payments are deducted “off the top,” before taxes, meaning the premiums are paid out of the servicemember’s pre-tax income. 

SBP payments to beneficiaries regularly increase in accordance with cost-of-living adjustments.

If the servicemember is required to provide SBP coverage for a former spouse after the divorce, DFAS must be notified of the election within one year of the entry of the divorce decree. To do this, you must submit DD Form 2656-10 along with a copy of the final decree and the settlement agreement, if applicable.

Generally, once SPB is elected, it cannot be changed or withdrawn. There is a limited exception where SBP coverage may be changed or withdrawn, but the covered spouse/former spouse must consent to it.

Division of Marital Assets and Property

Beyond military retirement benefits, divorce attorneys must also address the division of other marital assets. This includes real estate, vehicles, bank accounts, and personal property acquired during the marriage. In military divorce situations, marital property division can become complex when service members have been stationed in multiple states or own property in different locations.

Military spouses often contribute significantly to marital assets even when they don’t serve themselves. Frequent moves for military service can impact a spouse’s career opportunities, making fair division of marital property even more important. A good lawyer will account for these sacrifices when advocating for their clients.

Child Custody and Support in Military Divorce

Child custody represents one of the most sensitive areas in any divorce, but military divorce cases add extra layers of complexity. When one spouse is on active duty, deployment schedules and duty assignments can affect custody arrangements. Courts must consider what’s in the best interest of the children involved while accounting for the realities of military life.

Child support calculations in military divorce follow Virginia guidelines but must account for military allowances and benefits. Basic Allowance for Housing (BAH) and other military benefits factor into income calculations. An experienced military divorce lawyer knows how to properly calculate these amounts.

Protecting Children’s Well Being

Courts prioritize the well-being and best interest of minor children in all custody decisions. For military families, this means creating flexible custody agreements that can adapt to deployment schedules and reassignments. Family law attorneys work to establish arrangements that provide stability for children while honoring the service member’s duty obligations.

Legal Separation vs. Divorce

Some military couples choose legal separation before filing for divorce. This option allows spouses to live apart while maintaining certain legal ties. Legal separation can be useful for military families who need time to consider their options or who want to preserve certain military benefits during the separation period.

A separation agreement outlines how spouses will handle finances, child custody, and property during the separation. This agreement can later form the basis of a divorce settlement if the couple decides to proceed. Many family law attorneys recommend drafting a comprehensive separation agreement to protect both parties’ interests.

How Military Divorce Affects Benefits and Entitlements

Former military spouses may be entitled to continue receiving certain benefits after divorce. The Former Spouses Protection Act provides guidelines for when a former spouse can maintain access to military benefits like healthcare and commissary privileges. Generally, former spouses must meet the 20/20/20 rule: 20 years of marriage, 20 years of military service, and 20 years of overlap between the two.

Military retirement benefits represent a significant financial asset that must be properly addressed in divorce proceedings. The division of these benefits requires specific language in the divorce decree and proper filing with DFAS. Without correct documentation, former spouses may not receive their entitled share of retirement pay.

Why You Need an Experienced Military Divorce Lawyer

Military divorce involves complex legal issues that require specialized knowledge. An experienced military divorce lawyer understands both federal and state law, knows how to work with the Fairfax County courthouse, and can handle the unique challenges that military families face. Other attorneys without this extensive experience may miss important details that could affect your financial future.

A good lawyer who is well versed in military divorce law will protect your rights whether you’re the service member or the spouse. They understand how military regulations interact with Virginia family law and can guide you through the entire process. Don’t trust your future to attorneys who lack specific experience in military divorce cases.

What to Look for in Military Divorce Lawyers

When choosing military divorce lawyers, look for attorneys with a proven track record in representing clients from military families. The right divorce lawyer should have extensive experience handling cases involving military retirement division, child custody for active duty parents, and negotiations over survivor benefits.

Family lawyers who regularly practice in Northern Virginia understand the local court system and have relationships with judges at the Fairfax County courthouse. This local knowledge can make a significant difference in divorce cases. Your family law attorney should also be comfortable with the specific forms and procedures required by DFAS and other military agencies.

Contact a Fairfax Military Divorce Lawyer Today

At Raheen Family Law, we have dedicated our practice to helping military families going through divorce. Our law firm serves clients throughout Northern Virginia, including Fairfax, VA and surrounding communities. We understand that military divorce requires more than general family law knowledge. It demands attorneys who are well-versed in federal regulations, Virginia law, and how these two systems work together.

Whether you’re facing a contested divorce or working toward an uncontested divorce, our team has the extensive experience needed to protect your interests. We handle all aspects of military divorce, including child custody, spousal support, division of marital assets, and military retirement benefits. We’ve helped countless service members and military spouses through this difficult time, and we’re ready to help you.

Don’t go through this alone. The decisions you make during your divorce will affect your financial security and family relationships for years to come. Our experienced military divorce lawyer team will stand by your side through the entire process, from initial consultation through final resolution. We’re committed to representing clients with integrity and achieving outcomes that protect their well being and best interest.

Contact our Fairfax, VA law firm today to schedule a consultation. Let us put our extensive experience in military divorce cases to work for you. Call us now to speak with a family law attorney who understands the unique challenges that affect military families in Northern Virginia and throughout Fairfax County.