Getting a divorce is a complicated and emotional process that can be even more difficult when one or both spouses are active military members. In Virginia, some unique requirements and laws determine how the military process will proceed. In this article, our Manassas military divorce lawyers cover everything you need to know about military divorces and how they differ from a regular divorce.
1. Residency Requirements are Different
One requirement in the divorce process is to be a Virginia resident. During a regular divorce, only one spouse must have lived in Virginia for at least six months before they filed their divorce papers with the court. Additionally, they must intend to stay in Virginia after the divorce is final.
In a military divorce, Virginia typically waives this requirement. While the military spouse must have been stationed in Virginia for at least six months, they do not have to stay in the state afterward.
2. There are Legal Protections for Responding to Divorce Papers
To initiate the divorce process, the party filing for divorce must serve the other party with divorce papers. The spouse that is served divorce papers must respond to them within a certain amount of time. Failure to respond to the documents means the petitioning spouse can pursue a default divorce.
This process can present a problem for those on active duty as it can be challenging to receive and respond to mail. Therefore, Virginia has specific laws enacted in order to protect members of the military from default divorce judgments.
The Servicemembers Civil Relief Act (SCRA) explains how a stay of proceedings should be handled in civil cases involving service members. The SCRA outlines the following provisions for making the decision:
If the service member is on active duty and cannot be located or contacted, which results in them not receiving notice of the proceeding, they must follow the rules stated in 50 U.S. Code § 3931 - Protection of servicemembers against default judgments.
If the service member does not have notice because they are currently deployed and have been served divorce papers, they must follow the rules stated in 50 U.S. Code § 3932 – Stay of proceedings when the servicemember has notice.
Essentially, when the non-filing spouse is on active duty and therefore cannot appear in court, a judge will order a stay of proceedings either at the service member’s request or on their own. It gives active duty service members the chance to appear in court and respond to civil matters, or in this case, divorce proceedings. During this time, the court will put the case on hold and refrain from taking action on divorce-related issues like child custody, child support, spousal support, or property division.
3. Stay of Proceedings Last a Minimum of 90 Days
Based on the case’s relevant facts, judges have the discretion to decide how long a stay should last. However, the minimum time is 90 days. The judge can extend the 90 days, though, as long as the party requesting an extension shows good faith and due diligence in seeking military leave to attend court. Generally, the length of a stay corresponds with how long the service member has been on active duty.
4. Property Division is More Complicated
Virginia is an equitable distribution state when it comes to dividing property. This means that spouses should divide their marital property and debts “fairly.” This does not always come out to an equal 50/50 split, depending on the nature of the case.
In a military divorce, equitable property laws can be more complicated because of matters like splitting up retirement benefits for military members and their spouses. Due to this, Congress passed the Uniformed Services Former Spouse Protection Act (USFSPA). The USFSPA ensures spouses of military members receive military pensions in the event of a divorce. It treats military pensions as property rather than income in a divorce; thus, making it easier for the non-military spouse to seek benefits from the pension.
5. Child Custody is Typically Awarded to the More Stable Parent
The court’s number one priority is ensuring custody decisions are in the best interest of the child. Due to this, the court will consider how military moves have historically impacted the child’s stability and the child’s experiences related to military moves. Stability can mean more than just where a child lives; expressing those nuances to a judge can often be pivotal to a final decision regarding custody cases with a military parent.
Military parents can, however, protect their custodial rights. There are a few actions that can be taken to ensure service members keep their parental rights. To learn more about protecting your parental rights as a military member, contact a Manassas military divorce lawyer.
How Military Spouses File for Divorce in Virginia
Filing for divorce is tough, and when one or both spouses are in the military, it can get even tougher. If you or your spouse resided in VA 6 months prior to an overseas assignment, you may file for divorce in the state. You may also file if you or your spouse have currently resided within the state for the last 6 months. There may be a grace period of 6 months to a year which would require you or your spouse to live separately. Being overseas would count as that time away.
Contact Our Team of Experienced Military Divorce Attorneys
Because there are different regulations in a military divorce, it is crucial that military members have skilled legal representation to handle such cases. If you are going through a military divorce, Family Law Group is here for you. Our Manassas military divorce attorneys have the experience needed to advise you on how to go through your military divorce. We will work diligently to defend your rights.
Let us serve you during this difficult time. Call (703) 552-5072 to discuss your military divorce case with our team today.