Any divorce can be complex and emotional. However, there are unique issues if you are in the military or married to someone who is in the military and want to obtain a divorce in Virginia. It is important to understand these differences, so you file your divorce properly and your legal rights are protected.
Residency Requirements for a Military Divorce
As with a civilian divorce, you can obtain a fault or no-fault divorce in Virginia if you are in the military. To file for divorce in the Virginia commonwealth, you must meet the residency requirements. Civilians filing for divorce must have lived in Virginia for at least six months before filing for divorce. They must also plan to continue to stay in the state after the divorce.
However, the rules are different for military families. The spouse in the military only needs to be stationed in Virginia for the last six months but does not have to live there. In addition, he does not have to intend to continue residency there after the divorce is finalized.
Servicemembers Civil Relief Act Protections in a Military Divorce
When a person files for divorce in Virginia, the non-filing spouse must be served with the divorce complaint and other pleadings and be given an opportunity to file an answer. This is referred to as getting served with divorce papers. If he is properly served and fails to file an answer, a default judgment of divorce can be entered against him.
It can be much more complicated to serve someone in the Armed Forces who has been deployed to another state or country and for that person to file an answer to the divorce complaint. Because of this, individuals in the military have additional protections under the Servicemembers Civil Relief Act. The following two provisions of the law protect service members:
- No service. If the non-filing spouse is in the military, the law protects him against default judgments if he has not had notice of the divorce. The judge cannot enter a judgment against him unless he first appoints an attorney to represent the service member. The lawyer must attempt to notify the service member of the divorce and defend him. In addition, the divorce proceedings must be stayed, or put on hold, for at least 90 days.
- Service. If the individual in the military was served with divorce papers, the court can stay the proceedings for at least 90 days before entering a judgment of divorce. The court can decide to do this on its own motion or if the service member files an application requesting that the case be stayed.
Custody and Property Division Issues in a Military Divorce
When a married couple wants to divorce, they often have decisions to make about child custody, child support, alimony, and how to divide their property. If they can’t make these decisions on their own, the judge will make them. There are unique issues when one of the spouses is in the military, including:
In Virginia, property is divided equitably in a divorce, but this does not mean that it is always split equally between the spouses. A service member’s pension is often a substantial asset to be divided. Under the Uniformed Services Former Spouse Protection Act, a pension is treated as property and not income in a divorce. This protects the spouse of a serviceman, so she gets a portion of the pension after the divorce.
Deciding which spouse should have custody of the children can be more challenging in a military divorce because the service member can be frequently deployed. As in all divorces, the judge must make his decision based on the best interests of the child. However, the military member can ask the court to award him custody and to allow the children to stay with his parents or a sibling while he is away.
Alimony and Child Support
Alimony and child support can be major concerns for the spouse of someone in the military. These spouses often are alone with the children and may stay home to take care of them while the person in the military is deployed. Because of this, the spouse may have fewer job skills and need spousal support for a period of time after the divorce.
Service members can be ordered to pay more child support than a civilian when getting divorced. Because service members are not as available to share in visitation and parenting duties when they are not stationed in Virginia, the custodial spouse may have additional expenses.
Are you in the Armed Forces or the spouse of someone in the military and considering filing for divorce? You need an experienced divorce lawyer in Midlothian who understands the unique challenges of a military divorce and can protect your legal rights. Call our Midlothian office today to schedule a consultation to learn how we can assist you.