The Challenges of Military Divorce

In Virginia, military divorce cases offer special challenges for every attorney. Such cases involve a complex convergence of federal and state laws. Few lawyers in Northern Virginia fully understand these rules. However, the military divorce lawyers at Livesay & Myers, P.C. are intimately familiar with issues of military retirement, the Uniformed Services Former Spouses Protection Act, the Survivor Benefit Plan, disability pay, and the Servicemembers' Civil Relief Act.

Federal Law Governing Military Divorce 

The Uniformed Services Former Spouses Protection Act ( “USFSPA”) is the federal law that authorizes state courts to divide a servicemember’s disposable retired pay in military divorce cases. The USFSPA does not provide for any particular division of the member’s military retirement; it does not, for example, require that the former spouse receive 50% of the member’s retired pay. Rather, it simply authorizes states to apply their own laws regarding division of property to military retirement in military divorce cases. 

The USFSPA further provides that, once a state divorce court has ordered a division of the member’s military retired pay, the Defense Finance and Accounting Service (“DFAS”) may provide direct payment to the former spouse of her share, in cases where the marriage overlapped with 10 years or more of the member's military service. This is often referred to as the “10 year rule." Note that even in cases where the 10 year rule is not met, the court can still award the former spouse a share of the member’s military retirement. However, in these cases, the member must pay the former spouse the share directly, as direct payment through DFAS will be unavailable.

Virginia Law Governing Military Divorce

Virginia law provides that military retired pay is “marital property” to the extent it was earned during the parties’ marriage, and before the final separation of the parties. 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 servicemember’s creditable military service, divided by the total number of months of the member’s creditable military service. Virginia courts will typically award the spouse with a one-half (1/2) share of the "marital share."

Where the Member is Retired. In cases where the member has already retired at the time of the divorce, determining the marital share of military retired pay is relatively easy. In these cases, one is able to calculate both the numerator and the denominator of the fraction described above. For example, assume that a member serves in the military for exactly 2 years before marrying his wife, and that he then serves another 18 years while married, before finally retiring. The parties then separate and divorce. In this example, the marital share of the member’s disposable retired pay is 90% (18 years divided by 20 years), and the spouse will likely receive a total of 45% of the member's retired pay (50% x 90%).

Where the Member is on Active Duty. Determining the final marital share of the servicemember’s military retirement in military divorce cases where the member is still on active duty at the time of the divorce is simply not possible. This is because on cannot know the denominator of the marital share fraction until the servicemember has actually retired. For example, assume that a member serves in the military for exactly 2 years before marriage, and that he then serves another 18 years while married before separating from his wife. At the time of the divorce, the member remains on active duty. In this case, at the time of divorce the denominator cannot be finally calculated, as it is still growing. All of the member's service after separation, indeed after the divorce, will add to the denominator, thus reducing the percentage the spouse will receive.

However, while the divorce court cannot determine the denominator, it can determine the numerator. The numerator, fixed at the time of separation, is 18 years, or 216 months. So, to award the servicemember’s spouse 50% of the marital share, the Virginia court would typically order as follows:

“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 216 months of marriage during the Husband’s creditable military service, divided by the total number of months of the Husband’s creditable military service.”

DFAS will then fill in the denominator – the total number of months of the Husband’s creditable military service – later, when the member actually retires.

For advice geared toward the specifics of your case, contact us and set up a consultation with one of our military divorce lawyers today.