Going through a divorce can be difficult, especially if one or more partners are currently in the military. With potential orders for these active members, a standard divorce process is not always accessible and different procedures must be followed. Pursuing a military divorce will require several additional steps because of the military being involved with benefits and spouses.
Grounds for Military Divorce in Virginia
Before you file for divorce in Virginia, you need to know what grounds you are able to file on. There are only five grounds that spouses can file on in the state of Virginia.
- Recent felony conviction (12 months or under)
- Recent cruelty and desertion (12 months or under)
- Minimum of one-year separation for couples with children
- Six-month separation for those without children or adult children
- Proof of adultery within the last 5 years
Determine which grounds fit your situation when filing so that you can move forward with the appropriate process.
Where to file for divorce
Legally, a military divorce must be filed where the requesting party has been residing. That state is the only state that is eligible to make determinations regarding the division of property and military benefits. When you file in Virginia, you must meet certain criteria for eligibility.
Filing for divorce in Virginia
In order for the military divorce to be filed in the state of Virginia, at least one active military member in the marriage must be a resident in the state for at least six months during their current assignment or prior to deployment. Also, if that party is a resident of Virginia or stationed on a military ship that is ported out of Virginia, then they will have this opportunity to file. This should apply to the party that is serving the divorce.
Serving the other party in Virginia
In order for the divorce process to continue in Virginia, the other party must be notified of the divorce and respond within a particular time frame. If they do not respond or receive a notification right away, the other party may be eligible to file for a default divorce. When it comes to a military divorce, however, there a few protections in order.
Serving a military member
Because the party being served could be active duty, they may not be as easy to locate and serve as a standard divorce. There are procedures to be followed if the service member is not able to be located when the other party files the divorce. When they do receive a notice but may not be available due to deployment, they have a different set of criteria available for acknowledgment. These codes protect military members that are active and currently serving their country under deployment orders.
Asset Division
Like any divorce, the two parties have the option to divide their assets on their own. For those couples with little assets, this is easier to divide. However, if the court needs to intervene to fairly disperse assets among the couple, then it can be arranged, even in a military divorce. In the state of Virginia, they look for the two parties to have an equal division of property and assets.
Distribution of Military Benefits
One of the biggest differences between a military divorce and a standard divorce is the distribution of military benefits. Protecting the spouse who did not serve the divorce is essential, especially if they are not an active member of the military and currently receiving benefits as the spouse. Below are the different options that are applicable.
Retirement Benefits
Once a couple is married, the military pension benefits are available for collection for the member or their spouse. When a member retires or passes away, their spouse is the beneficiary to receive their benefits in their absence. There is a marital share that is provided to the spouse, where they can receive benefits from the wedding date or date of benefits, whichever date is the latest date.
Survivor Benefits
The active military member has a decision to make regarding their survivor benefits upon their death. They have an option to award these benefits to the spouse they are divorcing, or withhold them for a future spouse, if necessary. If they do want to still award these benefits to their spouse after the divorce, they will need to file proper documentation that ensures the right beneficiary receives benefits later if that person decides to remarry.
Child Custody
Like a traditional divorce, the determination of child support and custody will be reviewed by the court system and disbursed equally. While the active military member may be a fit parent, having equal custody could be difficult depending on current orders and deployments. However, these members are able to salvage their rights to their children by assigning family members to have temporary custody of the children when it is shared with the spouse. These family members include parents of the military member or a sibling that is above the age of 18.
Alimony & Child Support
Being able to live after the divorce is important for the non-military spouse. The active military member may be required to cover alimony for their spouse if they did not have a previous income and provide child support to cover the care of the children. In many cases, the percentage of child support that military members are required to pay increases compared to traditional divorce and civilian employment.
If they do not have a home to return to because they have been living in military housing and do not have the essential skills to obtain equal employment to that of their military spouse, alimony may be awarded for a certain time period.
It may be time for a consultation
If you are an active military member or married to an active military member and are pursuing a divorce, it may be time to reach out for a consultation. At The Law Office of Michael Ephraim, we work to get your military divorce processed quickly and efficiently so that you can move on with the next chapter of your life. Reach out today or give us a call at 1-703-291-3697.