Military Divorce Virginia Lawyers Arlington USFSPA SBP DFAS Service Members Civil Relief Act
Military Divorce In Virginia
Military divorces offer special challenges for divorcing clients. If you are facing a military divorce in Virginia, contact a divorce attorney who is well versed not only in divorce law, but also has a thorough understanding of federal and state laws. Only experienced Virginia lawyers have a true understanding of these military/divorce laws. The Virginia lawyers in who handle military divorce cases in our firm frequently assist military clients with divorce cases and understand the issues related to military retirement, the Uniformed Services Former Spouses Protection Act, the Survivor Benefit Plan, disability pay, and the service members’ Civil Relief Act.<img class="size-medium wp-image-106 " title="Military Divorce Virginia Lawyers Arlington USFSPA SBP DFAS Service Members Civil Relief Act” src=”http://arlingtonvirginialaws.com/wp-content/uploads/2013/01/117.jpg?w=300″ alt=”Military Divorce Virginia Lawyers Arlington USFSPA SBP DFAS Service Members Civil Relief Act” width=”300″ height=”265″ /> Military Divorce Virginia Lawyers Arlington USFSPA SBP DFAS Service Members Civil Relief Act
Federal Law Governing Military Divorce Cases
USFSPA (“The Uniformed Services Former Spouses Protection Act”) is a federal law that authorizes state courts to divide a service member’s disposable retired pay in military divorce cases. The USFSPA does not state the how a member’s military retirement is to be divided by a court in Virginia. Many military members or spouses of military members assume that the USFPSA requires that the former spouse receive 50% of the member’s retired pay. This is not correct. USFPSA simply authorizes states such as Virginia to apply their own laws regarding division of property to military retirement in military divorce cases.
Furthermore, the USFSPA states that, once a divorce court has ordered a division of the member’s military retired pay, DFAS (“Defense Finance and Accounting Service”) may provide direct payment to the former spouse of her share, in cases where the period of time married includes 10 years or more of the member’s military service. Often referred to as the “10 year rule.” Even if the 10 year rule does not apply, a divorce court in Virginia or Maryland can still award the former spouse a share of the member’s military retirement. The distinction is that, the military member must pay the former spouse the share directly, as direct payment through DFAS will be unavailable.
Law Governing Military Divorce in Virginia
Virginia law states that military retired pay is considered “marital property” to the extent it was earned during the parties’ marriage, and prior to the final separation of the parties. The formula used by the courts in Virginia is that the “marital share” of retired pay can be defined as a fraction, the numerator of which is the total number of months the parties were married (prior to separation) during the member’s creditable military service, divided by the total number of months of the member’s creditable military service. In most cases, the Virginia divorce courts will typically award the spouse with a one-half (1/2) share of the “marital share.”
What happens if the parties divorce after the military personnel is retired? When the military member has already retired at the time of the divorce, determining the marital share of military retired pay is a very formulaic approach. You simply calculate both the numerator and the denominator of the fraction stated above. Here is an example of what happens when the parties file for a divorce and the military member is already retired: Client serves in the military for exactly 5 years before marrying his wife, and that he then serves another 15 years while married, before finally retiring. The parties then separate and divorce. The marital share of the member’s disposable retired pay based on this example is 75% (15 years divided by 20 years), and the spouse will likely receive a total of 37.5% of the member’s retired pay (75% divided by 2).
What happens if a military member is on Active Duty when the parties file for a divorce. This is a lot more complex. Why? Determining the final marital share of the member’s military retirement in military divorce cases where the member is still on active duty at the time of the divorce is not possible. Again, why? No can know what the denominator of the marital share fraction will be until the military member has actually retired.
While the divorce court can determine is the numerator. The numerator will be fixed at the time of separation. So based on the example above, the numerator is 15 years or 180 months. So, to award the military member’s spouse 50% of the marital share, the Virginia court would order the following:
“the Wife shall receive fifty percent (50%) of the marital share of the Husband’s disposable retired pay. The marital share is a fraction, the numerator of which is 180 months of marriage during the Husband’s creditable military service, divided by the total number of months of the Husband’s creditable military service.”
At the time, the military member finally retires, DFAS will then calculate and fill in the denominator – the total number of months of the Husband’s creditable military.
If you are looking for an experienced Virginia lawyer for a military divorce in Virginia, contact our firm to discuss your case with one of our Virginia lawyers today.
A Virginia lawyer from our firm will do his best to help you with your military divorce. No lawyer can guarantee you an outcome. What you can guarantee is that if you talk to us, we will do our best to help you obtain the best possible outcome based on the facts of your case.
We have client meeting locations in Fairfax, Manassas, Richmond, Lynchburg, Loudoun, Fredericksburg & Virginia Beach.
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Arlington, VA 22216.
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.