The Unique Consequences & Stakes of a Military Divorce in Virginia

A military divorce involves far more than dividing furniture; it’s the division of a future built on unique, hard-earned benefits. The primary stakes revolve around the military pension, healthcare, and survivor benefits, which are governed by a complex interplay between Virginia’s equitable distribution laws and overriding federal statutes like the USFSPA.

When a civilian couple divorces in Virginia, the court divides marital property under the principle of “equitable distribution,” as outlined in the Code of Virginia § 20-107.3. This means the court aims for a fair, though not necessarily 50/50, division of property acquired during the marriage. In a military context, this same Virginia statute applies, but it operates within the framework set by federal law. This is where the complexity begins.

Dividing the Military Pension: The Core Financial Issue

The single most valuable asset in many military divorces is the service member’s disposable retired pay. The Uniformed Services Former Spouses’ Protection Act (USFSPA), found in 10 U.S.C. § 1408, is the federal law that authorizes state courts, like our Virginia Circuit Courts, to treat military retired pay as a marital asset subject to division. Without USFSPA, this would not be possible.

A Virginia court will first determine the “marital share” of the pension. This is typically calculated using a coverture fraction. While it sounds complex, the concept is simple: it’s the portion of the retirement earned *during* the marriage. The formula often looks something like this:

Marital Share Percentage = (Number of months of creditable service during the marriage) / (Total number of months of creditable service at retirement)

The court then awards the former spouse a percentage (often 50%) of this marital share. For example, if a couple was married for 15 years (180 months) of a 20-year (240 months) career, the marital share is 75% of the total pension (180/240). The spouse would typically be entitled to half of that 75%, or 37.5% of the total monthly retirement payment. Getting this calculation right in the final decree is absolutely critical.

The Survivor Benefit Plan (SBP): Securing the Future

What happens to the retirement payments if the service member passes away? They stop. This is a devastating financial reality for many former spouses who rely on that income. The Survivor Benefit Plan (SBP) is an annuity that a service member can elect to provide continued income to a beneficiary after their death. A Virginia court can, and often will, require the service member to elect former spouse SBP coverage as part of the divorce decree. Failing to address the SBP is one of the most catastrophic errors I see. The cost of the SBP premium is deducted from the retired pay, and this cost must also be allocated by the court. Without a specific court order, a former spouse can be left with nothing upon the service member’s death.

Healthcare and Other Benefits: The TRICARE Transition

For many military families, TRICARE is their lifeline for healthcare. Upon divorce, a non-military spouse loses TRICARE eligibility. However, under the “20/20/20 Rule,” a former spouse may retain TRICARE benefits if they were married to the service member for at least 20 years, the service member had at least 20 years of creditable service, and there was at least a 20-year overlap between the marriage and the service. For those who do not meet this strict rule, there is a transitional benefit called the Continued Health Care Benefit Program (CHCBP), which provides temporary coverage but must be enrolled in promptly. It is crucial to plan for this healthcare transition.

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

The legal process for a military divorce in Virginia follows the same basic path as a civilian divorce—filing, service, negotiation, and decree—but is uniquely impacted by federal laws like the SCRA. The key players are the Virginia Circuit Court, which has jurisdiction, and the Defense Finance and Accounting Service (DFAS), which administers payments.

Understanding the road ahead can demystify the process and help you prepare for each stage. While every case is unique, the general procedural steps in a Virginia Circuit Court are consistent.

Step 1: Establishing Jurisdiction and Filing the Complaint

Before a Virginia court can hear your case, it must have jurisdiction. For a divorce, this means at least one party must have been a resident and domiciliary of Virginia for at least six months prior to filing. For military members, this can be tricky. A service member stationed in Virginia may still maintain a legal domicile in another state. However, Virginia law allows for filing if the service member has been stationed in the Commonwealth for at least six months. The initial document filed with the appropriate Virginia Circuit Court is the “Complaint for Divorce,” which states the grounds for the divorce (e.g., separation for the required period, adultery) and what the filing party is requesting (e.g., division of property, support).

Step 2: Service of Process and the Servicemembers Civil Relief Act (SCRA)

Once filed, the Complaint must be legally “served” on the other spouse. This is where the Servicemembers Civil Relief Act (SCRA) comes into play. The SCRA is a federal law designed to protect active-duty service members from being disadvantaged in legal proceedings due to their military service. An active-duty member can request a “stay,” or postponement, of the divorce proceedings if their duties materially affect their ability to participate in their defense. This stay is initially automatic for 90 days and can be extended by the court. It is not a “get out of divorce free” card; it is a temporary postponement. Navigating the SCRA requires careful attention to procedure to ensure the case moves forward while respecting the service member’s rights.

Step 3: Discovery, Negotiation, and Settlement

This is the heart of the case. Both sides exchange information about finances, assets, and debts through a process called “discovery.” For military cases, this includes gathering Leave and Earning Statements (LES), retirement point statements, and other military-specific financial documents. Most cases are resolved through a negotiated settlement agreement, often called a Property Settlement Agreement (PSA) or Marital Settlement Agreement (MSA). This written contract details every aspect of the divorce: division of the military pension, SBP election, child custody and support, spousal support, and division of all other assets. A well-drafted PSA is the key to a smooth post-divorce future.

Step 4: The Final Decree and Post-Divorce Actions

If the parties reach an agreement, it is submitted to the court and incorporated into a Final Decree of Divorce. If no agreement is reached, the case proceeds to trial, where a judge will decide the contested issues. Once the decree is signed, the work is not over. A certified copy of the decree and other necessary forms must be sent to the Defense Finance and Accounting Service (DFAS). DFAS is the entity that processes the court order and arranges for the direct payment of the former spouse’s share of the military retirement. Without this crucial final step, the court’s order will not be enforced by the military pay center.

The SRIS Military Divorce Readiness Checklist

From my years of practice, I’ve learned that preparation is the single greatest factor in achieving a favorable and efficient outcome. A disorganized start leads to delays, increased costs, and missed opportunities. To empower our clients, we at Law Offices Of SRIS, P.C. have developed this proprietary checklist. Use this tool to gather the essential documents and information you will need. Having these items ready for your initial case assessment will place you in a position of strength and clarity.

Phase 1: Personal & Service Information

• ☐ Full Legal Names and Dates of Birth for both spouses and any minor children.
• ☐ Date and Place of Marriage.
• ☐ Dates of Separation. Note the date you ceased living together as a married couple.
• ☐ Service Member’s Full Rank and Branch of Service.
• ☐ Service Member’s Date of Entry into Military Service.
• ☐ Service Member’s Estimated or Actual Date of Retirement.
• ☐ Proof of Domicile/Residency. For the filing spouse, gather documents showing Virginia residency for the last six months (e.g., utility bills, driver’s license, lease agreement).

Phase 2: Essential Financial & Military Documents

• ☐ Leave and Earning Statements (LES): At least the last 12 months’ worth. This is the military equivalent of a paystub and is critical.
• ☐ Retirement Points Statement: For reservists or Guard members, this is essential for calculating retirement eligibility and value.
• ☐ Tax Returns: The last 3-5 years of federal and state tax returns, filed jointly or separately.
• ☐ Bank Statements: The last 12 months for all joint and individual accounts.
• ☐ Thrift Savings Plan (TSP) Statements: Recent statements for any TSP accounts. This is the military’s 401(k)-style retirement plan and is a separate, divisible asset.
• ☐ Real Estate Documents: Deeds, mortgage statements, and property tax assessments for any real property owned.
• ☐ Vehicle Titles and Loan Information.
• ☐ Debt Statements: Credit card statements, personal loan documents, and any other evidence of marital debt.
• ☐ VA Disability Award Letter (if applicable): It is crucial to document any VA disability rating, as these benefits are generally not divisible as marital property.

Phase 3: Children-Related Information (if applicable)

• ☐ Children’s Birth Certificates and Social Security Numbers.
• ☐ Documentation of Childcare Costs.
• ☐ Documentation of Health Insurance Premiums for the children.
• ☐ Family Care Plan: A copy of the service member’s current Family Care Plan, if one is required.
• ☐ School and Extracurricular Activity Information.

Proven Legal Strategies for Service Members and Spouses

Effective strategy in a military divorce requires a tailored approach based on whether you are the service member or the non-military spouse. For the service member, the focus is often on protecting separate property and ensuring fair calculations. For the spouse, the priority is securing a fair share of the marital assets and future benefits.

A successful outcome rarely happens by accident. It is the result of a deliberate strategy, executed with precision. Below are some of the core strategic considerations I discuss with my clients, depending on their role in the marriage.

Strategies for the Active-Duty or Retired Service Member

1. Leverage the SCRA Appropriately: The Servicemembers Civil Relief Act is a shield, not a sword. It is a vital tool if you are deployed or your duties genuinely prevent you from participating in your case. A strategic request for a stay can provide the necessary time to gather documents and consult with counsel without being rushed into a default judgment. However, using it merely to delay the inevitable can frustrate the court and may not be viewed favorably in the long run. Use it wisely and for its intended purpose.
2. Meticulously Trace Separate Property: Assets you owned *before* the marriage, or received as a gift or inheritance *during* the marriage, are your separate property under Virginia law. This includes any portion of your TSP or other investments that pre-date the marriage. The key is to have the documentation to trace these assets. Bank statements from before the marriage and inheritance records can be invaluable in protecting what is rightfully yours from division.
3. Understand the VA Disability Pay Offset: This is a critical point. If you are eligible for VA disability benefits, you may elect to waive a portion of your taxable military retired pay in order to receive an equal amount of non-taxable VA disability pay. Federal law (USFSPA) explicitly states that amounts waived to receive VA disability pay cannot be divided by a state court in a divorce. This can significantly reduce the “disposable retired pay” available for division. It is not a loophole to be exploited, but a legal reality that must be factored into the overall property settlement.

Strategies for the Non-Military Spouse

1. Insist on a Complete Financial Picture: Do not accept a simple LES as the full financial story. A seasoned attorney will use formal discovery to request TSP statements, asset records, and information about any potential bonuses or special pays. A thorough valuation of the military pension is crucial. This often requires projecting future pay grades and years of service to estimate the pension’s true value at retirement.
2. Secure the Survivor Benefit Plan (SBP): As discussed earlier, this is non-negotiable if you expect to rely on the pension income for your future. The strategy is to ensure the specific language ordering the service member to elect “former spouse coverage” is included in the settlement agreement and Final Decree. Some agreements even include a provision making the service member’s estate liable for the lost benefit if they fail to make the election or later change it. The cost of the SBP premium should also be negotiated—will it be paid by the service member, the former spouse, or split?
3. Negotiate for a Reservation of Jurisdiction: For active-duty divorces where the service member is far from retirement, it can be beneficial to have the court “reserve jurisdiction” over the pension. This means the court will divide the pension later, when the service member actually retires. This strategy can be advantageous because it allows the pension to be divided based on the service member’s actual rank and years of service at retirement, which often results in a larger share for the former spouse than if it were valued at the time of divorce.

Common, Costly Mistakes to Avoid in Your Military Divorce

Over the last 20 years, I’ve seen the same handful of preventable errors derail cases and cause long-term financial harm. Being aware of these common pitfalls is the first step in avoiding them. A knowledgeable legal team is the second.

1. Misunderstanding the “10/10 Rule”: This is the most common misconception. The rule states that for a marriage lasting at least 10 years, overlapping with 10 years of creditable military service, DFAS will make direct payments of the awarded pension share to the former spouse. Many incorrectly believe that if they don’t meet the 10/10 Rule, they are not entitled to anything. This is false. A Virginia court can award a share of the pension after just one year of marriage; the 10/10 Rule only governs the *method of payment*. If you don’t meet it, the service member will have to pay you directly.
2. Failing to Properly Draft the Pension Division Order: DFAS has extremely strict requirements for the language in a court order. If the order is vague, uses the wrong terminology (e.g., “alimony” instead of “property division”), or lacks specific calculations, DFAS will reject it. This can lead to years of post-divorce litigation to amend the decree. It must be done right the first time.
3. Ignoring the Thrift Savings Plan (TSP): The TSP is a separate and substantial asset. It is a defined contribution plan, much like a civilian 401(k). The marital share of the TSP is divisible. A separate court order, a “Retirement Benefits Court Order,” is required to divide the TSP. Simply mentioning it in the divorce decree is not enough.
4. Neglecting to Address Potential Post-Decree Indemnification: What happens if the service member elects to take VA disability pay after the divorce is final, reducing the retirement pay the former spouse receives? A well-drafted settlement agreement should include an “indemnification clause.” This clause requires the service member to compensate (indemnify) the former spouse for any reduction in their share caused by such post-divorce actions.
5. Missing the Deadline for SBP Election: After the divorce decree is issued, the non-military spouse has one year to submit a “Deemed Election” letter for the Survivor Benefit Plan to the appropriate military finance center. If the service member fails to make the election as ordered and the former spouse misses this one-year deadline, the SBP coverage can be lost forever.

Glossary of Key Military Divorce Terms

USFSPA (Uniformed Services Former Spouses’ Protection Act)

The federal law that recognizes the authority of state courts to divide military retired pay as a marital asset in a divorce.

SCRA (Servicemembers Civil Relief Act)

A federal law that provides legal protections to active-duty service members, including the ability to request a temporary stay (postponement) of civil court proceedings, such as a divorce.

DFAS (Defense Finance and Accounting Service)

The government agency responsible for administering military pay systems. DFAS processes court orders to divide retired pay and make direct payments to former spouses.

Disposable Retired Pay

The gross amount of retired pay less certain deductions, including amounts waived in order to receive VA disability benefits. This is the amount that is subject to division by a court.

TSP (Thrift Savings Plan)

A retirement savings and investment plan for federal employees and members of the uniformed services, similar to a 401(k). The marital portion is a divisible asset.

SBP (Survivor Benefit Plan)

An annuity paid to a designated beneficiary upon the death of a military retiree. A court can order a service member to elect former spouse SBP coverage.

Marital Share

The portion of a military pension or other asset that was earned or accumulated during the period of the marriage, from the date of marriage to the date of final separation.

Common Scenarios & Pressing Questions

Scenario 1: The Deployed Spouse

“My husband is a Navy officer deployed on a carrier out of Norfolk. We’ve been separated for over a year, and I want to file for divorce in Virginia Beach. Can I do this while he’s overseas, and will he be able to stop it?”

Perspective: Yes, you can file for divorce in the Virginia Beach Circuit Court provided you meet the six-month residency requirement. You will need to arrange for him to be properly served with the divorce papers, which can sometimes be done through his commanding officer. Under the SCRA, he can request an automatic 90-day stay of the proceedings by informing the court that his duties prevent him from participating. The court can grant further stays if his service continues to materially affect his ability to defend himself. The divorce will not be stopped indefinitely, but it will likely be paused until he is better able to participate.

Scenario 2: The Short-Term Marriage

“I am an Army Captain at Fort Gregg-Adams. My wife and I are divorcing after only six years of marriage. She says she is entitled to half of my retirement. Is that true?”

Perspective: Your wife is not entitled to half of your total retirement, but she is entitled to a share of the *marital portion* of your retirement. Because you were married for six years of your service, a Virginia court will consider those six years of pension growth to be a marital asset. The court will calculate the marital share and award her a percentage of it (typically 50%). Because the marriage was less than 10 years, you will not meet the “10/10 Rule,” meaning DFAS will not pay her directly. Instead, the court order will obligate you to make monthly payments to her from your retirement pay once you start receiving it.

Scenario 3: The Gray Divorce with VA Disability

“I retired from the Air Force after 25 years at Langley and am now 58. My husband and I are divorcing. I have a 40% VA disability rating and receive VA disability pay. How does this affect the division of my retired pay?”

Perspective: This is a very important financial question. In order to receive your non-taxable VA disability pay, you must waive an equivalent amount of your taxable military retired pay. Under federal law, the amount you waive is *not* considered “disposable retired pay” and cannot be divided by the Virginia court. For example, if your gross retirement pay is $4,000/month and you waive $800 to receive VA disability, the divisible “pot” of money for the court is only $3,200, not $4,000. It is crucial that this calculation is done correctly to ensure the final order complies with federal law and accurately reflects the divisible property.

Frequently Asked Questions

1. Where do we file for a military divorce in Virginia?

You must file in the Circuit Court of the county or city where one of the parties resides and meets the Virginia residency requirements (living in Virginia for at least six months with the intent to remain).

2. My spouse is stationed in Virginia, but is a resident of Texas. Can we still divorce here?

Yes. Virginia law allows for divorce proceedings if the service member has been stationed in the Commonwealth for at least six months, even if they maintain legal domicile elsewhere.

3. How long does a military divorce take in Virginia?

If uncontested, it can be completed a few months after the statutory separation period (one year, or six months if there are no minor children and you have a signed agreement) is met. Contested cases or cases involving a deployed service member invoking SCRA rights can take significantly longer.

4. How is child support calculated for a service member?

Child support in Virginia is calculated using state guidelines based on both parents’ gross incomes. For a service member, “gross income” includes base pay, Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), and other special pays. It is a comprehensive calculation.

5. How are custody and visitation handled with deployments?

Virginia courts require a detailed parenting plan that addresses custody and visitation during deployments. These plans often include provisions for video calls, email access, and designating temporary custody to a family member during the service member’s absence.

6. Is my spouse entitled to my Thrift Savings Plan (TSP)?

Yes. The portion of the TSP that accrued during the marriage is a marital asset subject to equitable distribution by a Virginia court.

7. What is the difference between dividing a pension and spousal support (alimony)?

Dividing the pension is a form of property division—it is the former spouse’s share of an asset earned during the marriage. Spousal support is a separate payment from one spouse to the other for their maintenance and is based on need and ability to pay, among other factors set forth in Virginia Code.

8. Do I lose my military ID and base privileges after the divorce?

Yes, in most cases. You are no longer considered a military dependent. However, if you meet the 20/20/20 Rule, you may be eligible to retain an ID card for the purpose of accessing certain benefits.

9. Can the court divide my disability pay from the VA?

No. Federal law prohibits state courts from dividing VA disability benefits as marital property. However, this income can be considered by the court when determining spousal or child support obligations.

10. What happens if we move out of Virginia during the divorce process?

Once a Virginia court has established jurisdiction over the divorce, it generally retains it to finalize the case, even if one or both parties move. This is known as “continuing jurisdiction.”

11. My spouse committed adultery. Does that mean I get a bigger share of the pension?

While adultery is a fault ground for divorce in Virginia and can bar the cheating spouse from receiving spousal support, it typically does not directly impact the equitable distribution of property like the pension unless the adulterous behavior involved wasting marital assets.

12. What is a “Frozen Benefit” order?

This is one way to value a pension, particularly for a service member still on active duty. The court “freezes” the value of the marital share as of the date of divorce. The non-military spouse receives their percentage of that frozen value, and does not benefit from the service member’s future promotions.

13. Can a military member be forced to retire to pay a pension share?

No. The decision of when to retire is a personal one, and a court cannot compel a service member to retire.

14. What if my divorce decree from another state didn’t divide the military pension?

In some limited circumstances, if the original court did not have jurisdiction to divide the pension, you may be able to file a separate action in a court that does, like Virginia, to partition the “missed asset.” This is a legally complex and time-sensitive issue.

15. Why do I need an attorney with military divorce experience?

The intersection of Virginia family law, federal statutes like USFSPA and SCRA, and military regulations creates a highly complex legal environment. An experienced attorney understands this interplay and knows how to draft orders that will be accepted by DFAS, protecting your rights and financial future from common, costly errors.