Virginia Military Divorce Lawyers
In Virginia, military divorce cases offer special challenges for every attorney. Such cases involve a complex convergence of Virginia divorce laws and federal laws. Few lawyers in Northern Virginia and Richmond are intimately familiar with these rules. However, Livesay & Myers lawyers James Livesay, Amanda Foley and Matthew Kurylo are intimately familiar with issues of military retired pay (military retirement), the Uniformed Services Former Spouses Protection Act, the Survivor Benefit Plan, military disability pay, and the Servicemembers' Civil Relief Act.
Federal Law Governing Military Divorce
The Uniformed Services Former Spouses Protection Act (the “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 servicemember’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.
Disposable Retired Pay Under the USFSPA
Under the USFSPA, state courts are only allowed to divide a servicemember’s “disposable retired pay,” not the member’s gross retired pay, and not any disability pay the member receives, in military divorce cases. The USFSPA defines “disposable retired pay” as gross retired pay minus:
- Recoupments or repayments to the federal government,
- Deductions from retired pay for court-martial fines or forfeitures,
- Disability pay benefits, and
- Survivor Benefit Plan premiums.
The exclusion of disability benefits from the definition of disposable retired pay means that the former spouse of a servicemember may lose out on hundreds or thousands of dollars per month that he or she might otherwise have received in a division of the member’s disposable retired pay. To learn more about how the servicemember can use this to his or her advantage in a military divorce case, and about how the former spouse can protect himself or herself against it, click here.
Direct Payment to Former Spouses Under the USFSPA
The USFSPA further provides that, once a state court has ordered a certain division of the servicemember’s military retired pay in a military divorce case, the Defense Finance and Accounting Service (“DFAS”) may provide direct payment of the former spouse’s share, under certain conditions. DFAS may provide direct payment to the former spouse where the spouse was married to the servicemember for 10 years or more concurrent with creditable service by the servicemember for retirement purposes.
In other words, if the servicemember’s creditable service for retirement overlapped with the member’s military service by 10 years for more, then the former spouse can receive direct payment of whatever share the state court awarded the former spouse. This is often referred to as the “ten year rule” by military divorce attorneys.
Note that even in military divorce cases where there is not 10 years of overlap between the servicemember’s creditable service for retirement and the marriage, the court can still award the former spouse a share of the member’s military retirement. However, in these cases, the servicemember must pay the former spouse the share directly, as direct payment through DFAS will be unavailable.
The information provided above is intended only as an introduction to the primary federal law governing military divorce and military retirement. Whether you live in Fredericksburg, Spotsylvania, Stafford, or Woodbridge, Virginia, for advice geared toward the specifics of your military divorce case, you should contact us and set up a consultation with one of our military divorce lawyers today.
Virginia Law Governing Military Divorce
Virginia law provides that retirement plans and pensions, including military retirement in military divorce cases, are “marital property” to the extent they were acquired during the parties’ marriage, and before the final separation of the parties. To the extent that such retirement plans or pensions were acquired by one party prior to the parties’ marriage or after the separation of the parties, they are that party’s “separate property.”
Virginia courts are tasked , in military divorce cases as in most contested divorce cases, with making an "equitable distribution” of the parties’ marital property. However, an “equitable distribution” does not automatically mean a 50/50 distribution. Rather, Virginia courts must apply a list of factors found in Virginia Code Section 20-107.3 to each case, and decide based on those factors upon a distribution that is appropriate to each particular case.
In Virginia military divorce cases, the portion of the member’s military retired pay that is “marital property” - the so-called “marital share”- 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.
In military divorce cases where the servicemember has already retired from the military at the time of the divorce, determining the marital share for the member’s 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 in a given military divorce case that a servicemember had served in the military for exactly 2 years before marrying his wife, and assume that he then served another 18 years before retiring, while still married to his wife. The parties then separate, after the member’s retirement.
In this military divorce example, 18 of the servicemember’s 20 years of service occurred during the marriage and prior to the separation of the parties. Thus, the numerator of the marital share fraction is 18 years, and the denominator is 20 years.
Therefore, the marital share of the servicemember’s disposable retired pay in this military divorce is 90% (18 divided by 20). If the court chooses to award the member’s wife 50% of the of the marital share of military retirement, she will thus receive a total of 45% of his disposable retired pay (.50 x .90).
On the other hand, exactly determining the 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.
However, in this type of military divorce, the Virginia court can nonetheless award a percentage of the marital share of the servicemember’s military retirements to the spouse, by using a simple formula.
For example, assume in another military divorce case that a servicemember had begun his active duty service after he has been married to his wife for exactly 2 years. Exactly 18 years after the servicemember began his military service, he and his wife separate, and subsequently divorce. 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 could 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.
The information provided above is intended only as an introduction to the Virginia Law governing military divorce. For advice geared toward the specifics of your military divorce case, you should contact us and set up a consultation with one of our military divorce lawyers today.
About our Military Divorce Attorneys
Lawyer James Livesay, a former Navy JAG Corps Officer, represents both servicemembers and spouses in military divorce cases. Mr. Livesay’s article, “Treatment of Disability Pay in Military Divorce,” has been published on a number of online divorce websites, including Divorce Headquarters, DivorceNet, and WomansDivorce.com.
Attorney Amanda Foley represents both servicemembers and spouses in military divorces. The wife of a former Navy officer, Ms. Foley is intimately familiar with the experiences of a military spouse. Ms. Foley stays active in military spouse affairs through her membership in Ex-Partners of Servicemembers for Equality (“EX-POSE”).
Lawyer Matthew Kurylo, a former Marine Corps Legal Services Specialist, also represents both servicemembers and spouses in military divorce cases. As a military veteran, Mr. Kurylo is particularly familiar with the issues surrounding military divorce cases.
In addition to being well versed in the federal and Virginia laws governing military divorce, our military divorce lawyers are intimately familiar with the courts of Northern Virginia and Richmond.
Contact us to schedule a consultation today.
