Virginia Military Divorce - Protect Your Military Retirement Rights

So often when a couple divorces and one of them is in the military, one of the most important assets is their military retirement. Due to the large number of military personnel stationed in Northern Virginia, this is a common issue when a military divorce occurs in Northern Virginia.

Under Virginia law, divorce is the legal termination of a marital union ordered by the court. Divorce is not an easy process and it can be more difficult when both or one spouse is an active military member. Depending on what state the divorce is filed, each state has specific laws for where a person should file for divorce, the division of martial assets and
regulate what military benefits the non-military spouse can get.

The petition for a divorce must be filed in the state which the military member has his or her official residence, in this case Virginia. Filing in the state which the military member official resides in is important because the Uniformed Services Former Spouses Protection Act (USFSPA) states that the state where the spouse in the military resides, in the event of a divorce it is the only state that has the power to divide up the military pension. A person should file their paperwork in the court they want their martial assets to be divided.

If Virginia is not the official residence of the military spouse, the other spouse must have lived in Virginia for at least 6 months. When filing for a divorce there are two types of grounds; these include fault grounds and no-fault grounds. Filing a divorce based on no-fault grounds can be less time consuming and cheaper. The spouses seeking an absolute divorce must file for a separation agreement. This states that both spouses must live for at least 12 months apart without any interruption if they have minor children under the age of 18. If the spouses don’t have minor children then they must spend 6 months of separation. After this time period is over then they may file for an absolute divorce in Virginia.

Acceptable fault grounds for a Virginia military divorce include adultery, including homosexual acts whereby the evidence must be clear and convincing within the last 5 years. Cruelty which requires physical or extreme emotional harm to the complaining party and/or a child or abandonment in which one party leaves the marital residence without the other spouses consent all within one year. or the conviction or imprisonment of one spouse for at least a year.

When it comes to the division of military assets in a Virginia military divorce, the military pension is considered as property in the divorce. The non-military spouse will receive 50% of the marital share of the pension. The martial share begins when the spouses got married or the military spouse enrolled in the military, whichever event occurred first. And it ends on the date of separation or date of divorce.

The Survivor Benefit Plan (SBP) created by the military ensures that the surviving non-military spouse gets 55% of the non-surviving military spouse. In a Virginia military divorce, the military member can decide to give the SBP to the spouse he or she is divorcing or withhold it for a potential future spouse.

The thrift savings plan is a military version of an IRA savings account. In the event of a Virginia military divorce it is considered as a military asset. The funds can either be divided or given to one person in exchange for another asset.

Due to many military bases in Virginia and especially in Northern Virginia, the courts routinely deal with Virginia military divorces. If you are dealing with a Virginia military divorce, it is critical that your Virginia divorce lawyer understand the unique aspects of a Virginia military divorce.

ABOUT THE AUTHOR: Atchuthan Sriskandarajah
Mr. Sris has helped numerous clients get through a military divorce in Northern Virginia.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.
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