In all honesty, most attorneys in the Hampton Roads area have a pretty high degree of familiarity with military divorces. In fact, in many ways, military divorces aren’t really all that different from regular, ‘civilian’ divorces.
Divorce is never ‘one size fits all’, whether military or not, but there are some general basics that all divorces follow. A divorce is either settled by agreement (usually called a separation agreement), or resolved by final order of a judge in court. Litigated divorces – cases that are resolved in court – are the most contentious, the most costly, and the most time consuming. The biggest wild card issues are spousal support and child custody.
There are unique issues that come up in military cases, like relocation – whether because the non-military spouse would prefer to move closer to her support network (which is probably somewhere not all that close to her current partner’s permanent duty station), or because the military partner is PCSing somewhere else. Knowing to include income, like BAH and hazard pay from various deployments, as well as how to read an LES (Leave and Earning Statement) statement, is important for family law attorneys handling military divorces.
There’s also pretty specific language that needs to be in both the separation agreement and the final decree regarding the division of military assets, like the military retirement. This language changes with some frequency, because what DFAS wants/needs to see in these orders changes from time to time, so you’ll want someone who is familiar with what, exactly, to include.
In military cases, as in almost every kind of divorce case, I tend to think one of the most important components is how knowledgeable the wife is.
By knowing what to ask for – what you’re entitled to receive – and what is more of a bargaining chip, it’ll help you begin to prioritize and structure what, in your mind, a good result would look like. Knowing, too, what to expect from the military is important.
A couple of principles you should keep in mind:
1. Military JAG attorneys are not going to be a help in your divorce.
Military JAG attorneys are military attorneys. They are not necessarily licensed in the state where they are stationed. They passed the bar somewhere, but they don’t practice in the courts in the state where they happen to be stationed. A military attorney is not, for example, ever going to appear before a judge in a Commonwealth court.
A military JAG attorney can’t take your divorce case and cannot represent you in court. In reality, a JAG attorney shouldn’t even advise you on your divorce. Sometimes they will – because, I’m sure, they genuinely want to help – but if a JAG attorney is not licensed in Virginia and does not have any experience in family law, he really isn’t qualified to give that advice.
The law is constantly changing, state specific, and not at all intuitive; it’s not like just by virtue of going to law school, we somehow all know all the laws. Just like I’d be useless in a criminal or personal injury case, a JAG attorney is useless in a Virginia divorce case. If I were you, even if one was willing to give me ‘free’ advice, I’d double check it all with a licensed, experienced attorney who could actually represent you in Virginia courts.
2. There’s no ‘ten year’ rule.
The military ‘ten year’ myth (notice that I called it a myth) is that a person who has not been married to a military service member for at least ten years is not entitled to a portion of the retirement. I hear this all the time. Spoiler alert: it is not true.
The real rule is that you start earning an interest in his retirement on the day that you marry. You have a 50% interest in everything that is earned from the day that you marry. You will receive 50% of the marital share of the pension, the TSP (Thrift Savings Plan), and any other retirement account or investment in which you (or he, or both, jointly) have participated during the marriage.
Ten years is a benchmark that matters, though. Until you’ve been married for ten years (and those ten years overlap his military service), you won’t qualify to have your retirement portion paid out to you directly from DFAS. Before ten years, your ex will be paid, and then he’ll pay you your portion. That’s it. All ten years means is that you either do or do not qualify for direct pay through DFAS.
3. The MILPERSMAN support guidelines do not apply in Virginia courts.
The MILPERSMAN (military personnel manual) provides guidelines for how much spousal and child support a military service member will provide. Though it looks very nice and official, it is not binding on our courts. In fact, Virginia has its own formula for determining child (and, depending on the circumstances, spousal) support. It is Virginia’s laws that apply when it comes to awarding child and/or spousal support, so it’s best not to get too hung up on what the MILPERSMAN says, or even to spend a lot of time and trouble trying to get him or his CO (commanding officer) or a military tribunal to enforce those support guidelines.
4. To qualify for extended TriCare coverage, you have to be a 20/20/20 or a 20/20/15 spouse.
It’s true: these guidelines aren’t particularly generous. You have to be married for twenty years, and those twenty years have to overlap his 20+ years of military service in order to be a 20/20/20 spouse. Similarly, a 20/20/15 spouse has to have been married for at least twenty years to a servicemember with at least 20 years in the military, and at least 15 of those years have to overlap.
The main difference is that 20/20/20 entitles you to permanent military healthcare coverage; 20/20/15 only entitles you to one year of coverage.
If you do not meet either of those criteria, you will not receive TriCare coverage after the entry of the final divorce decree. (But you’re in good company; there’s no continued healthcare coverage for civilians under any circumstances, no matter how long the marriage.)
5. A military protective order is nice. A Virginia one is better.
If you are a victim of domestic violence, I wouldn’t recommend stopping at a military protective order. I’m not even sure I’d try to get one at all, since what is most enforceable is going to be a protective order granted by a Virginia judge in a Commonwealth court.
Military divorce is common, especially in an area – like Hampton Roads – with such a rich military heritage. You still want to make sure that (1) you’re working with an attorney with an up to date understanding of the law as it relates to military divorce, and (2) that you understand your rights and entitlements as a military spouse under the law.
The more you know, the better your choices will be. For more information, visit our website at hoflaw.com to download our free guide to military divorce, register to attend one of our upcoming divorce webinars, or schedule a confidential consultation today.