If you or your spouse is in the military, it’s only natural that, when your thoughts turn to divorce (or any other legal issue, for that matter), your mind jumps automatically to the legal services provided to military service members by the JAG attorneys.
The military provides a great deal of incredibly valuable services to its members, and not thinking of using a JAG attorney probably seems, to you, a little bit like not using your Exchange privileges. Why would you do that? You’ve got this benefit, just sitting there, and you might as well use it. Besides, the quicker you jump into the JAG attorney’s office, the sooner you can make sure that your husband is conflicted out. (A JAG attorney’s office can’t give BOTH of you advice; that would be an ethical violation.)
Military families often tend to think no further than whatever services are specifically offered to them by the military—and, in most cases, that makes perfect sense. The military provides a ton of incredibly valuable services to its members, and there’s really no reason not to take advantage of free or low cost benefits.
…Or is there?
If you’re a woman, currently living in Virginia, married to a current or retired military service member (or currently on active duty or retired from military service yourself) and you’re starting to think that you’re headed towards divorce, shouldn’t you contact JAG first?
Can I talk to JAG attorneys about my Virginia divorce?
Yes, of course, you can talk to a JAG attorney about your Virginia divorce—but the question is, more appropriately, whether a JAG attorney is the right person with whom to speak. A JAG attorney will, probably, answer some of your questions, give you some general legal advice, and then refer you out to someone who practices Virginia law. Sometimes, I’ve even heard of JAG attorneys who try to practice Virginia law by drafting separation agreements and even giving women specific advice for how to proceed in court.
What’s the problem with that? Aren’t JAG attorneys licensed attorneys like any other attorney?
Yes, JAG attorneys are licensed attorneys—but that doesn’t mean that a JAG attorney is licensed to practice law in the state in which he or she is stationed. Military JAG attorneys practice military law—not civilian law—and many of the JAG attorneys stationed in Virginia have little to no actual experience with Virginia state law.
Wouldn’t a JAG attorney know something about Virginia divorce anyway?
Maybe. And maybe not. Divorce is one of those areas of law that is incredibly state specific, and the laws can vary pretty dramatically from state to state. There are things that are allowed in North Carolina, for example, that don’t fly in the Commonwealth of Virginia. So, even though we’re really geographically very close, there can be differences that you don’t realize—and, by extension, that the JAG attorneys (through no fault of their own) don’t realize, either.
When it comes to your divorce, you want to be sure you’re talking to someone who is actually licensed in the state where you and your husband last lived as husband and wife—because it’s that state’s law that will reign supreme, so to speak, in your divorce case. A military JAG attorney might give you inaccurate advice—which could hurt your case—without realizing it.
JAG attorneys aren’t supposed to practice family law, but I’ve heard horror stories about cases where they have done it anyway. In fact, just the other day, when I was teaching the Second Saturday seminar, I had a woman tell me that she had done that. She went to the JAG attorney’s office and the attorney ultimately drafted an agreement for her. She let me read it—and it was a total disaster.
Can’t she just have her agreement overturned, since a JAG attorney drafted it and he wasn’t supposed to do that?
The problem with separation agreements is that it’s very, very difficult (if not altogether impossible) to overturn them later. Even if it was written by a JAG attorney who shouldn’t be practicing in the Commonwealth (even if, in fact, you wrote it yourself on a beverage napkin at a bar after 3 martinis), it’s going to be unlikely that your agreement would be overturned later on.
Why not? Well, mostly because judges really believe in contract law. After all, if people didn’t enter into contracts and settle their disputes on their own, judges would have to hear their cases and reach decisions on their behalf.
If judges went around overturning agreements after people negotiated them, no one would be tempted to enter into them. Imagine how you’d feel, after you performed your part of the agreement, only to have someone else take your agreement to court—saying it was fraudulent or that you misrepresented something—and then it actually got overturned. You would have complied with the terms of your agreement (in good faith, of course) only to be totally screwed over later. Besides, how would the judge know truth from falsity?
In order to keep people who are able to settle their own disputes out of court, the court has to show deference to agreements negotiated between people. People who negotiate their own disputes are ideal because they (1) don’t back up the court’s docket, (2) don’t use up precious state resources, and (3) tend to be much happier with their outcomes in general. As far as the court is concerned, upholding agreements, not cleanliness, is next to godliness. (You know, in that whole ‘the state is separate from the church’ kind of way. I was just using an expression.)
So, to paraphrase—no. No, she can’t just have her agreement overturned later, even though a JAG attorney drafted it. Although he shouldn’t have done that, she’s likely stuck with her agreement.
So what’s the big deal? Isn’t an agreement an agreement? Even though the JAG attorney shouldn’t have drafted it, how bad can it be?
That all depends. It could, potentially, be very, very bad. In fact, it was very, very bad for the woman I met at Second Saturday. She signed away many of her rights. I’m not sure, in all honesty, whether she signed them away because the JAG attorney didn’t know any better, or whether he purposefully drafted an agreement that was in the best interests of the service member. I don’t know this attorney in particular, or where he is licensed to practice, so it’s hard for me to say. But there are serious issues when it comes to using a JAG attorney versus using an attorney licensed in Virginia. I can think, off the top of my head, of four big objections I have to using a JAG attorney to negotiate your separation agreement in a Virginia divorce case:
1. They’re looking out for the service member.
This one I’ve already touched on, but it bears repeating. Usually, in my experience, other military service members are looking out for the service member spouse. The wife isn’t their first priority. Even if the JAG attorney tells you that he or she is representing you exclusively, do you want to have that nagging doubt in the back of your mind? Is this attorney representing your best interests—or not?
2. They aren’t up to date in Virginia—or in their state, for that matter.
The law changes all the time. In Virginia, every July 1 new laws take effect. A JAG attorney practices military law, not Virginia law, so the JAG attorney doesn’t know (and isn’t bound by) the changes in Virginia law.
In reality, though, the JAG attorney isn’t even aware of the changes in his or her own state, either. Because they’re practicing military law, not state, law, they can have been out of the loop, so to speak, when it comes to domestic relations law for years—or even decades—and not know what they’ve missed. That’s the thing about not knowing—you rarely know all the things that you don’t know. Do you want to rely on this person when it comes to drafting your separation agreement?
3. They don’t know what the law is in Virginia.
Your JAG attorney may never have known the law in Virginia, let alone how it has changed over time. How can they draft an agreement, being sure to give you all the things to which you are entitled, without knowing the law?
4. They don’t practice family law.
Yup, that’s right. Since JAG attorneys practice military law (and most of them have their entire career), they have never practiced family law, nor been family law attorneys. Military law doesn’t deal with family law issues at all (because the state court’s rules apply in these types of cases), so you’d be consulting with someone who has NO experience in family law cases at all. I wouldn’t be comfortable drafting a will for someone, since that’s not my area of expertise. Would you want someone with no experience drafting a separation agreement drafting one for you for the first time?
5. But if it saves you the money of hiring an attorney, isn’t it worth it? Maybe it’s not perfect, but at least I don’t have to pay for an attorney, too!
Well, that all depends. Me, personally—I wouldn’t want a JAG attorney touching my divorce. Even in cases where there isn’t a ton of money, there are still tens of thousands of dollars at stake (think about the value of the military retirement, for example!). In other cases, there are hundreds of thousands or even millions of dollars involved. There’s custody, too, and real estate, and retirement, and bank accounts, and debt, too. (Never underestimate the importance of avoiding as much debt as possible in divorce!)
Is it worth avoiding paying money to an attorney at the risk of losing your entitlement to something that could be worth far more?
That’s how I see it, when someone tells me that they signed an agreement because they didn’t want to pay an attorney to review it. Is it worth avoiding spending $285 (the cost for a consultation in our office) if you waive (not knowing any better) your right to an asset worth $5,000—or more? In my opinion, it’s not—but, I guess, at the end of the day, that’s a judgment call.
All I’m saying is…make sure you get the information you need to make the best, most informed decisions possible. Maybe, after talking to a Virginia attorney, you decide to draft your own agreement, or use one that a JAG attorney drafted (even though, technically, he’s not supposed to do that). At least then you’ll sleep at night knowing that you took steps to educate yourself, and then you acted on that information.
We’re here to help. We’re licensed, experienced Virginia divorce attorneys and family law attorneys representing women only, and we handle tons of military divorces. We’re well versed in military divorce, and we’re happy to help point you in the right direction—even if you don’t ultimately decide to hire our firm to represent you in your divorce.
For more information, request a free copy of our military divorce book , consider attending one of our seminars on divorce, or schedule a confidential consultation with us by giving us a call at (757) 425-5200.