Divorcing Virginia Women in the Military

Posted on Oct 30, 2023 by Katie Carter

If you’re a woman in the military and you’re getting a divorce, you’re not alone.  Though the reverse dynamic – a man as the active duty military service member and a woman as the dependent spouse – is more common, that doesn’t mean that the reverse doesn’t also occur.

Plenty of women are active duty military servicemembers, find themselves in Virginia, and also realize that their marriages cannot continue.

Our book – and, to be sure, most of our content related to military spouses – is written for the woman as dependent spouses.  It’s the most common scenario.  But I recently received feedback that active duty military servicemembers would benefit from content tailored to their specific scenario, so I am here to comply.

What are the differences in military divorce where the wife is the active (or retired) duty military servicemember?

As a Virginia based family law attorney, what does it tell me about a person that she’s an active duty or retired military servicemember?

Knowing that you’re military means that I know there’s a military pension, and maybe a TSP account, to divide.  I know that your spouse has some options available to him as well: specifically, opting into SGLI, maybe even 20/20/20 or 20/20/15 benefits.

I know to ask about disability pay (because that’s not divisible) and to see your LES statement to determine what you’re actually earning.  I know that there are specific rules as it relates to custody and visitation, and to be aware that – when/if you PCS somewhere else – custody and visitation might be an issue.

I do not assume that you’re the higher wage earner or that you’ll have to pay child support and/or spousal support.  In general, I try to write articles for women (military or not) as if they are the lesser earner, not because I’m sexist (gosh, I hope not!) but because earning less triggers more specific options.  Whether you’re entitled to, for example, spousal support or not, I want to describe it a bit so that you know what to expect.  Whether you have a military pension to divide or not, I also want to mention that your ex may have a retirement plan (one that is worth more, even!) too.  It’s not all losses on one side; there are things on both sides (whether higher or lesser earning) that are valid, relevant considerations.

Divorce is divorce, military or civilian, active duty or dependent spouse.

It’s really NOT different, just because the woman is the active duty military servicemember.  A divorce is a divorce – meaning that you either negotiate a separation agreement or you litigate in court – and all of the assets, liabilities, and responsibilities have to be divided between the parties.  That’s the same whether you’re military or civilian, active duty or dependent spouse.  Divorce follows much of the same procedure regardless.

JAG attorneys can’t help you.

Additionally, you can’t consult with a JAG attorney.  Well, physically you can, but a JAG attorney is a military attorney – and, as such, is not licensed to practice law in the Commonwealth of Virginia.  That means that she can’t appear in court to represent you.  Because she (hey, she can be a ‘she’, too, right?) likely isn’t licensed in Virginia and, instead, is able to practice only military law, she can’t even draft a separation agreement on your behalf.  (Be careful, though: I have seen a few where JAG attorneys do it – even though they shouldn’t – and they are, absolutely without exception, HORRIBLE!  You really do have to be up to date on Virginia law to do it.)

We had an attorney once who was married to a JAG attorney, and who liked to tell me that JAG attorneys read my blog (I’m flattered!) and were angry to be characterized this way.  Though I find that hard to believe – surely they’re not concerned – I do also feel compelled to say that it’s not that JAG attorneys aren’t great, capable, well-meaning attorneys.  They are!  They just don’t practice family law in Virginia and, in general, it’s best to talk to someone who practices, day in and day out, in the area of law that applies to your situation.  You wouldn’t want me to take your personal injury case or draft your will – I don’t do that work.  I’d make mistakes without knowing it, even though I would never in a million years do it on purpose.  The same applies to a JAG attorney.  Family law is not their area of expertise.

The same things – military retirement pay, Thrift Savings Plans, and the like – have to be divided.

In Virginia, the law is simple.  The marital share of an asset is half of what was earned, purchased, or acquired during the marriage.

It doesn’t matter who earned it – whether you or him – it’s divisible if you were married when you earned it.  It doesn’t mean that your spouse gets a flat 50% (unless, of course, they’ve been married to you for a full half of your military career), but rather is entitled to 50% of what was earned during the marriage.

Depending on when you joined up, you may participate in the traditional retirement system or the new blended retirement system.

Keep in mind, too, that whatever your spouse has earned during the course of his work is divisible by the same formula.  Despite the fact that the military uses somewhat disparaging language for the ‘dependent’ spouse, I often find that the dependent spouse out-earns the military service member, so this may be something that is worth quite a lot in your situation, too.  Your ‘dependent’ spouse may not be at all dependent on you – which is good news, especially if you’re concerned about spousal support.

The military ten year myth

Have you heard of the military ten year myth?  Specifically, it says that if you haven’t been married for ten years, that your dependent spouse is not entitled to a portion of your retirement.  I mean, I do think I led with this, by calling it a myth, but it’s still one that I find that military service members and their spouses do not understand.  You are entitled to 50% of what was earned during the marriage – you both are, in fact – and that is true whether you’ve been married 10 days or 10 years or 100 years.  Obviously, in the case of a ten day marriage, your portion would be correspondingly tiny, but there is no bar to your receiving your marital share.

Spousal support is still a consideration.

When it comes to spousal support, we look at the incomes of both parties during the marriage.  We’ll look at your income, as an active duty military servicemember, and at his income, doing whatever it is he does.  Whoever earns more – especially if that figure is significantly more – might be ordered to pay spousal support.

It’s really fairly complicated, and we often determine spousal support temporarily before we have a final determination, so you should read up on spousal support specifically.  Just because you’re the military servicemember does not automatically mean you’d have to pay, or, indeed, that you would be barred from receiving spousal support.  The court will look at (1) need and ability to pay, (2) the Virginia statutory factors, and (3) the length of your marriage to determine (1) whether you’ll receive spousal support at all (or have to pay it), (2) if so, for how long, and (3) if so, in what amount.

Doesn’t the MILPERSMAN govern how much a military service member must pay to support her family?

The military is HUGE about promoting myths, so be aware.  Though the MILPERSMAN has guidelines for family support, those guidelines are NOT binding.  Military divorces, like civilian divorces, are adjudicated in the Virginia courts.  As such, Virginia laws are followed.  Military ‘guidelines’ for support are largely irrelevant.  Don’t bog yourself down in the details you find in the MILPERSMAN; talk to a Virginia attorney about whether you’ll receive (or pay) support and, if so, how much.

You are also potentially entitled to receive spousal (and/or child support) yourself, depending on your income shares, custodial arrangement, length of your marriage, and other factors.  Talk to an attorney about the specifics of your case.

In most military divorce cases where the woman is the dependent spouse (and, in fact, in many cases, civilian or military) we assume that the wife earns less – not because she’s not a strong, powerful player in her own right (because she is – whether she works or not, and whether she’s military or not) but because being the lesser earning spouse triggers the most divorce-related benefits.

If you earn more, or earn the same, then spousal support is less of an issue.

Your spouse is eligible – depending on the length of your marriage – to be considered a 20/20/20 or a 20/20/15 spouse.

Just like when a wife is the dependent military service member, a husband has the same options – provided he’s been married long enough.  This doesn’t cost the spouse who serves more, so many couples choose to delay their divorces (especially if one spouse has a preexisting condition or other extraordinary medical issues) until they reach that time, especially if it’s not that far into the distance.

Disability pay is not divisible.

If a portion of your pay is categorized as disability, then that part will not be considered income in the same way – it’s basically excluded from child and spousal support calculations.

Frankly?  Custody is an area of concern.

For active duty military servicemembers, custody is a concern.  (Though, admittedly, when my client is the dependent spouse, I view this in a different, more positive light.)

The fact is that you could PCS, or even be deployed, without much say on your part.  When you PCS, you have to go – and the laws in Virginia on relocation are fairly severe.  The court will not order that your spouse follow you (cannot, in fact) or that he (or she – as, of course, this could also be a same sex marriage) allow the children to move with you.

In my cases where the spouse is the military dependent spouse, I often say that this is a great thing.  It’s a way to sort of be free of him without having to win a relocation case.  You can stay in Virginia, if he’s gone, or – as is often the case, depending on how far away he goes, if he’s PCSing – maybe even move back a little closer to home.  If he’s PCSing from Norfolk to San Diego, for example, why couldn’t you move back home to Illinois or Michigan or Texas?  You’d be CLOSER to him, after all.

If you’re the one deploying, you’ll have to come up with a family plan – which likely means that he’ll have all of the parenting time during the course of that deployment.  It’s possible you could delegate some of that parenting time to your parents or a maternal aunt or uncle, but, if you do that, it’s not as likely you’ll be able to make up some of the time that you’ve lost on the front or back end.

Child custody and visitation is a bit of a wildcard in a military case, especially if mom is active duty.   You have little to no control over where and when you have to go.

Child custody in Virginia is determined by the ‘best interests of the child’ so there aren’t hard and fast rules.  Judges generally like status quo, and are unlikely to order the kids to go with you out of state if they’re doing well and dad is staying in state.  You could petition to modify later on, of course – because custody and visitation are modifiable based on a material change in circumstances – but we can’t assume that because you’re mom you’ll get primary (or even shared) physical custody.  The military adds a whole other complicated dimension.

It would be a big concern to the court that you are going somewhere else with the children, especially if you’re deployable.  So, what?  You move them to California, enroll them into school there, and then deploy?  Assuming dad still lives in Virginia, that gives him a limited ability to care for them during your deployment.  On the other hand, if they stay with dad in Virginia and you deploy, they can still stay with dad (in the schools they’ve been in all along, probably) with minimal disruption.

Of course, this will all depend on the specific facts, but I would be remiss if I didn’t mention specific concerns and considerations.  It’s not a foregone conclusion that dad will keep custody – after all, there could be a LOT wrong with the guy, I don’t know – but you have some serious red flags, too, as far as the court is concerned.

Thank you for your service!  You’re definitely smart to be reading up on your specific rights, entitlements, and responsibilities under the law.  I hope this article helps, but I also think you should consider looking at the other articles (and even our military divorce book), even if they aren’t written from the perspective of a female military servicemember.  It’ll at least trigger you to notice the specific issues, and let you know where you need to ask more questions.  The issues are often the same, if reversed, and can be incredibly helpful as you figure out how to move forward.

For more information or to schedule a consultation, give our office a call at 757-425-5200.