A few weeks ago, my coworker, Lorna Rhoades, and I were guests on a podcast about Virginia military divorce. As a former military spouse, Lorna had a lot of really interesting insights into how it feels to be married to a military servicemember.
One of the things that Lorna said, that I thought was interesting, was that when she married her husband, she was never introduced to any of the military resources now available to her, never educated about military retirement, and then, when her husband retired, never prepared in any way for what retirement would bring. Everything she learned, she learned on the fly.
That got us thinking, though. How DO military wives (or female active duty military service members) get their divorce-related information? Because, in my experience at least, they all come in professing to know something. It’s just that, well, sometimes they’re wrong. Like, really wrong!
There are a lot of things about military divorce that you might not know. Not only that, but even if you do think that you’re pretty well versed in all things military, it’s definitely a good idea to check up on yourself and make sure that you’re right! (Because the ones who are the most convinced about what’s true are often the ones who are very, very wrong!)
So, anyway, as advocates for women, that’s why we’re here – to talk about the things about military divorce that we think women need to know, and that women often get wrong. Though we’re only licensed to practice law here in the commonwealth of Virginia, half the battle in divorce – as in almost anything – is to know what questions to ask. The power isn’t as much in knowing the answers as it is in being able to articulate the questions to get you the answers. In military divorce, because of military legal, JAG offices, spouses determined to convince their wives to settle for less, and general misinformation, it seems that women are even less aware of the truth than civilian women.
This isn’t to scare you. If you’ve read any of my other articles before today, you should know that my goal is always to encourage and to empower you – to ask the questions you need to ask, to get the information you need to make solid choices for yourself and your family, and to help you advocate for yourself. This is to tell you that, though you may have to take some steps to gather the information, you should never just accept something as true without verifying it – especially if the military or your husband has told you its true! By all means, verify!
In preparing for our talk on the podcast, Lorna and I came up with a list of four things that we thought women should know about military divorce.
1. You can’t rely on the JAG attorney or military legal for divorce and/or custody related information.
JAG attorneys are attorneys, yes. But JAG attorneys are military attorneys. They practice military law.
While a JAG attorney could theoretically be licensed in Virginia AND stationed in Virginia, it’s probably unlikely. Most of the time, JAG attorneys are licensed in their state of origin; they practice military law, on base or post or whatever, in the state where they are stationed. Even if a JAG attorney happened to be licensed in and stationed in Virginia, he or she would not be able to appear in a court in the Commonwealth on a family law matter.
He or she likely knows very little about family law, too – especially if he or she has been in practice with the military for any period of time. Like most areas of the law, family law is complex and constantly changing, and you really need to stay on top of changes in the law in order to know family law and practice it effectively.
JAG attorneys are not supposed to write separation agreements. They do, sometimes – and I can say that, without exception, every JAG-drafted separation agreement I’ve seen has been completely terrible. That’s not to say that a JAG attorney couldn’t do a good job, it’s just that I’ve never seen it. They’re smart and capable attorneys, but they don’t have the family law knowledge and experience (or maybe they do – and they’re trying to help the military service member at the spouse’s expense!) to do it well.
Do not ask a JAG attorney to draft you an agreement. Do not sign an agreement a JAG attorney has prepared. Talk to a licensed, experienced Virginia divorce attorney – not a JAG attorney – for your divorce and/or custody-related information.
2. If you haven’t been married to your husband for more than ten years, it is NOT TRUE that you aren’t entitled to a portion of his pension! (The Military Ten Year Myth)
Military service members like to say that, if you haven’t been married for ten years, you don’t qualify to receive a portion of the military pension.
That is a complete and total lie. Retirement accounts – including military pensions – are divided according to a marital share calculation. You receive 50% of what was earned during the marriage (during the time that your marriage and his active duty military service overlapped). That’s not to say that you’ll receive 50% overall, but it doesn’t matter how long you’ve been married.
If you were married a very, very short time, your portion of the pension would be tiny. If you were married for his entire career, you’ll receive the full 50%. If, like most military wives, you’re somewhere in the middle, your portion will be calculated by a formula.
Oh, and it’s not a negotiating point – you’re entitled to 50% of the marital share, since it’s a marital asset, because the statute says so. He’s not doing you any favors; he’s giving you what you’ve earned.
3. Military orders are different than Virginia court orders.
The Virginia Courts have the final say-so.
When it comes to spousal and child support, it’s not the guidelines for support that the MILPERSMAN sets forth; it’s what the court orders.
When it comes to relocations, it’s the Virginia court that will determine whether or not the children will be moved. If your child’s father gets orders somewhere outside of Virginia and you don’t want to go along, you don’t have to. The court won’t make you move. But, on the other side, if your child’s father is stationed here and you want to relocate with the children somewhere else, you may find yourself stuck here. Only the military service member must go where the military orders.
4. Reporting his behavior to a commanding officer is not necessarily the step you should take to get what you need established.
Wives tell me all the time that they want to report their husband – for failure to pay child and/or spousal support (see point #3 above), for committing adultery, or some other kind of misbehavior – to their spouse’s commanding officer.
That’s…a dangerous course of action, to say the least, and it may not have the desired effect. As we already discussed, when it comes to support, it’s really the support orders set by the courts that are binding and enforceable. A military service member’s commanding officer may or may not be willing to enforce military guidelines for support, depending on the servicemember’s rank and status within his unit, but it’s always possible to enforce valid orders through the court itself.
It doesn’t happen often that a commanding officer responds in the way the wife wishes he would. But it could happen – and sometimes does happen – that the communication made to the commanding officer is either (1) completely ineffective, or (2) has a serious negative consequence.
What if your husband is fired? Or demoted? Will that get you support? Will that stop the infidelity? No, but it may leave you in a diminished financial position, especially if you were counting on child and spousal support from him.
There are a lot of things that you should know about military divorce in Virginia and, if one of these things was something that you didn’t already know before you read this article, I think there’s a good chance you’ll find that there’s more that you don’t know you don’t know.
Divorce is a big deal. You shouldn’t be making decisions without full knowledge of your rights and entitlements under Virginia law! You have to protect yourself, and you shouldn’t just accept what you hear from even well meaning friends and family without verifying.
To get a bit of a head start, I recommend reading our free military divorce book, attending our monthly divorce seminar, or scheduling a one-on-one consultation with one of our licensed and experienced Virginia divorce and custody attorneys. You’ll be glad you did!