Just like a civilian divorce, a military divorce is emotionally and financially challenging. And for military families, divorce comes with its own unique complexities that can affect how long the process takes.
While state and local statutes and procedures typically govern civilian divorce proceedings, particular federal statutes and military regulations will apply to your divorce if you are a military service member. At Melone Hatley, P.C., our experienced Loudoun, Virginia military divorce attorneys are here to help you understand these unique factors and how they can affect timelines when navigating a military divorce.
How Does Military Divorce Differ From Civilian Divorce?
A divorce is considered a “military divorce” when one or both spouses are military service members. While the basic divorce process follows many of the same steps as a civilian divorce, other unique considerations can contribute to how long the process will take, including:
- Jurisdiction – A military divorce has several jurisdiction options, which can affect grounds, property distribution, child custody, child support, and spousal support.
- Timeline – A military divorce is likely to take longer given certain legal protections afforded to military service members.
- Child custody and visitation – Child custody and visitation can be more complicated, considering the stationing and deployment of the service member.
- Length of marriage and military service – The duration of the marriage and time served in the military are often relevant in asset division.
- Spouses’ military benefits – Former military spouses may be able to retain their benefits and privileges under specific circumstances.
- Survivor benefits – Former military spouses may also be able to collect income from the service member’s pension through the Survivor Benefit Plan (SBA).
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Contested Vs. Uncontested
Like a civilian divorce, a military divorce can be contested or uncontested. If spouses can reach basic agreements about the terms of their divorce, it can help streamline the process. However, if they cannot agree on issues that affect their divorce, it will be considered contested and may require significant negotiation and a court trial. Depending on its complexity, a contested military divorce can take months or even years to resolve.
Jurisdiction
The jurisdiction of a divorce case is foundational to which court and laws will have authority over the proceeding.
Jurisdiction in a civilian divorce is determined by where one or both spouses live. However, military spouses often relocate and are frequently stationed away from each other or deployed overseas. Consequently, a military spouse has different options for jurisdiction for filing for divorce. These include where they legally reside, their “Home of Record,” where they are currently stationed, or wherever they last resided if deployed overseas.
Divorcing spouses must fulfill that jurisdiction’s residency and filing requirements. In Loudoun, Virginia, there are specific residency and separation requirements that must be fulfilled before filing for divorce, whether it is a civilian or military divorce.
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Grounds for Divorce
While there are no specific military grounds for divorce, fault-based grounds in a military divorce will be subject to the jurisdiction that has authority over the divorce. In Virginia, both fault-based and no-vault grounds are recognized. Using fault-based grounds for divorce can create many delays in the process. Fortunately, all states now have no-fault options that can streamline a divorce’s timeline.
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Military Protections
Delays are almost always inevitable if a service member is deployed or on active duty. The Servicemembers Civil Relief Act (SCRA) is a federal law providing a range of legal protections to active-duty military service members so they can focus on their military responsibilities without legal or financial consequences. But these protections can also prolong a divorce process.
Protections under the SCRA include
- A stay of court and administrative proceedings, allowing postponement of divorce and other legal proceedings when the servicemember cannot attend a hearing because of their military duties
- A stay of execution of judgments, attachments, and garnishments, allowing for a temporary halt in enforcement of any judgments, attachments, or garnishments if a service member is unable to pay because of their military service
- Default judgment protection, protecting a service member from a default judgment if they cannot appear because of their military duties
If a service member agrees to the divorce, however, they can waive their rights under the SCRA to keep the divorce proceedings progressing in a timely fashion.
Service and Response
The respondent (non-filing) spouse must be formally notified of a divorce and given ample time to respond. This can be challenging for active-duty service members, especially those who are serving overseas. The SCRA also allows for a delay of up to 90 days or more for service of process and an extension of the required response time, if necessary.
Asset Division
A military divorce often involves more complex asset division. When one spouse is a military service member, the Uniformed Services Former Spouses’ Protection Act (USFSPA) may affect how some assets will be divided, such as military retirement pay, healthcare coverage and other benefits, and commissary and exchange privileges.
Child Custody and Visitation
In any divorce, child custody and visitation disputes can significantly prolong the divorce process. Because military families face the additional challenges of relocation and deployment, this can further complicate custody and visitation disputes.
Overseas Divorce
Filing for divorce overseas and serving divorce papers to a deployed service member can be challenging. Furthermore, the U.S. court may not recognize a divorce filed overseas.
Military divorces rely solely on United States divorce laws, regardless of where the military service member is stationed, and filing domestically is the best option. Fortunately, the Servicemembers Civil Relief Act allows deployed military members to delay divorce proceedings by up to 90 days.
Getting the Skilled Legal Guidance of an Experienced Military Divorce Attorney in Loudoun, Virginia
While certain delays are unavoidable in a military divorce, essential protections have been put into place for the benefit of both service members and military spouses. Getting skilled and experienced legal representation can be critical in understanding the nuances of military divorce and helping to expedite the process.
The military divorce attorneys at Melone Hatley, P.C., our experienced Loudoun, Virginia military divorce attorneys have helped hundreds of military families navigate the emotionally and financially overwhelming terrain of divorce. We are here for you every step of the way and are dedicated to your best outcome in matters of property division, child custody, child support, spousal support, and other issues. Call us at (703) 740-9698 or schedule a free consultation through our online contact form.
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