A “military divorce” is not a true legal term. It simply means a divorce between two parties where one of them is or has been in military service. A divorce between a military couple follows the same rules as any other couple as far as qualifying for a divorce and is governed by the tenets of Virginia law. The difference, then, arises in how a service member’s retirement pay and disability pay are handled under the law.
The Uniformed Services Former Spouses Protection Act (USFSPA)
The USFSPA is a federal law that was passed in 1982 that recognizes the right of state courts to distribute military retired pay to a former spouse. In essence, it allows the retirement pay to be treated as property for the purpose of a divorce rather than as income. The law applies to disposable retired pay only. Disposable retired pay is defined by the law as the total monthly retirement benefit minus disability pay, federal debt repayments, fines, forfeitures and Survivor Benefit Plan premiums. In order to receive direct payment of the benefit, the marriage must have been of at least 10 years duration during which the service member performed at least 10 years of military service. The division of the pension benefit must be awarded by a court in a divorce order to be eligible to receive direct payments, as well. Virginia law allows for the division of military pensions so this should be an important issue in the divorce negotiation.
The USFSPA specifically excludes disability benefits from the law. Neither military disability retired pay nor Veteran’s Administration Disability Compensation can be divided between spouses by a state divorce court. What’s more, if a service member opts for either type of disability payment, the spouse may not be entitled to any retirement pay at all.
All is not lost, however. Virginia recognizes the right of a divorcing couple to enter into what is known as a property settlement agreement which allows an agreement that stipulates that if the service member opts for disability payments and waives all or part of the disposal retirement pay, the spouse is entitled to monthly payments to make up for the lost retirement pay. If this cannot be negotiated, the spouse can also ask the court to require spousal support to make up the difference in lost retirement pay.
Survivor Benefit Plan (SPB)
Simply put, SPB is an annuity that pays a monthly amount to a designated beneficiary after the death of a retired service member. Virginia law allows courts to award SBP coverage to the spouse. This is another way, in a military divorce, that the non-military spouse may protect their share of retirement income.
Any divorce can be a complicated legal matter and a military divorce can be even more so. Many divorce attorneys never deal with military divorces and do not know the nuances that are necessary to ensure that the proper processes are followed. As with most areas of the law, however, a failure to claim your rights in a military divorce will result in the loss of your rights. A divorce is an incredibly trying time and you will need all the help you can get. If you live in the Virginia Beach area and you find yourself in the unfortunate situation of facing a military divorce, the skilled attorneys at Shannon & Associates, P.C. are here to help you. Give them a call at (757) 228-5529 today to set up your initial consultation. They have helped hundreds of military divorce clients get what they deserve. They can use their years of experience and their expertise to help you, as well.