Divorce Information, Divorce Representation

Military Divorce In Virginia: What You Need to Know

Divorces are rarely simple. Even when both parties split amicably and have a plan, it can still take time to jump through some legal hoops to finalize. The more complicated the case, the more steps there are to take - and more factors to consider. If you or your spouse is in the military, you will have other circumstances to take into account. If you're thinking like a service member (or someone in a military family), your first instinct may be to reach out to a JAG attorney. While they may be able to offer some guidance, divorce is largely a civilian matter. In fact, the people in your local JAG office may not even be licensed to practice law in Virginia. With that in mind, you should be seeking civilian legal counsel to help you navigate your divorce, regardless of military status. There are a few unique elements to take into account, however, if you or your spouse is serving in the armed forces. Again, every situation is unique, and dealing directly with an attorney will shed the most light on the exact steps you will personally need to take. Here are a few issues that come up with divorce when you are in the military:

Residency

Virginia divorces require 6 months of residency within the state by one or both spouses, with the intent to stay for the foreseeable future. For members of the military, particularly those who maintain their driver's license and "residency" in another state, still may meet this 6-month requirement if they are living (stationed) in Virginia for the statutory period, since the standard looks to your "domicile" rather than your driver's license. Intent to stay in the state is not a factor in such cases, given the fact that you are subject to the demands of the military.

Filing and Serving

Active duty military personnel are protected from default divorces under federal and Virginia law. The concept here is relatively simple. If an individual is deployed and cannot receive notice of their spouse's divorce filing, or cannot respond, the filing spouse may not move for a default divorce (as would be normal in many other scenarios). Similarly, the law also protects active-duty individuals who have received notice, but cannot appear in court or otherwise attend to the divorce in person. Such individuals will often be granted extensions by a judge, with the potential to waive any extensions or postponements.

Property

In the State of Virginia, the property is divided equitably in a divorce. Generally speaking, the same is true in a military divorce, but it's important to note that certain federal protections are in place for insurance, survivor, and retirement benefits. This helps military personnel retain such benefits in the event of a divorce, but can also be extended to spouses (and even ex-spouses) depending on the length of the marriage, length of active duty service, specific programs, and other factors. Beyond those benefits, property division is treated like most other divorce cases.

Alimony and Child Support

While determining exact figures is always a case-by-case basis, it's important to anticipate this topic, especially if you or your spouse is currently in the military. Many spouses of those in the armed services choose to be stay-at-home parents or caretakers of the home, simply because of the benefits afforded to (and time demands of) active duty service men and women. Unfortunately, this can also translate into a lack of job experience, advanced degrees and professional training, making it difficult for such an individual to leap back into the workforce and earn a living after a divorce. For this reason, alimony and support is often much higher in military divorces than other cases. A judge will determine the exact amounts, but this commonality should not be overlooked as you prepare for your divorce proceedings.

Child Custody

Last, but certainly not least, the topic of custody is likely the most complex component of a military divorce. Generally speaking, custody is based on the residence of the child. That means that in many cases, full custody is granted to the spouse not in the military member - largely because of the time and distance that often come with active duty. However, this gets far more complicated in joint-custody, or if the non-military spouse isn't a fit parent. Military members can petition for custody to be passed on to grandparents or other family members during deployment, or still, other options can be considered based on the child's residence, the fitness of either parent and availability of guardianship. Like the other topics here, child custody will be highly specific to your unique scenario, but because of the complexity of the laws - and the sheer importance of ensuring a child's well-being - it's worth examining potential outcomes as you move forward with your divorce. Determining custody could be the most difficult part.