Military Divorce: What You Need to Know

By: John Whitbeck

[10.22.2020] If you are married to an active member of the military and are contemplating divorce, there are some important considerations to know about military divorces. Divorce is an emotional and often complicated process, to begin with, but the added element of one spouse being active military can present additional challenges. It’s important to understand the differences, so you do not make a wrong choice and potentially jeopardize your settlement. Because of the nuances involved, speaking with a Virginia divorce attorney is highly recommended.

Like other states, Virginia laws govern divorces in the state; but some federal laws can impact your divorce when one spouse is in the military. Here’s what you need to know before filing for divorce in Virginia:

Virginia Residency Requirements

One or both spouses are required to live in Virginia for at least six months, with the intent to stay indefinitely to establish residency before filing for divorce. There is an exception for military that says that as long as the active military member has been stationed in Virginia for at least six months, it will meet the residency requirements.

Deployment as Separation

The no-fault grounds for divorce in the state require that there must be an intentional, permanent separation that continues for at least one year, without interruption. It is reduced to six months if there is a separation agreement and no minor children are involved. In some instances, a deployment may count toward the required year of separation in Virginia. If one of the parties intended for the deployment to be a permanent separation, and there is no cohabitation when the deployment ends, it can count towards the time requirement.

Military Protection for Virginia Divorces

There are laws in place that help protect active-duty military members from a default judgment for their failure to respond to a divorce petition. This is called the Soldiers and Sailors Civil Relief Act, 50 USC Section 521. Virginia courts will postpone the hearing for the entire time the spouse is on duty and up to 60 days after. This is often used in scenarios where a military member may be deployed fighting in a war. The military spouse can opt to waive the postponement as well.

Child Custody

As with any divorce, the judge has to decide what type of custody arrangement is best for the child or children involved. Because military spouses often have long deployments and relocate often, it’s not uncommon to find that judges prefer to assign full custody to the non-military spouse. Child custody can be tricky, depending on where the child lives. You may do the divorce in Virginia, but if the child primarily lives abroad, the custody will be decided by the courts in the country where they live, even in the case of a United States citizen.

Spousal and Child Support

Spousal and child support can be more complicated in a military divorce because it can be difficult to calculate the military spouse’s income. Often, a military spouse has a base income and receives housing allowance, bonuses, hazard pay, and other types of non-monetary compensation.

Retaining a Virginia Family Law Attorney

There are additional areas where military divorces will differ from a standard divorce case. If you’re contemplating divorce and either you or your spouse is in the military, you need to speak with a knowledgeable Virginia family law attorney. Contact the skilled team at WhitbeckBennett by calling 800-516-3964 or by emailing clientservices@wblaws.com to schedule your consultation.

Related: Divorce