Getting a divorce is bad enough, but getting a divorce when your spouse is a military service member is often even more difficult. Not only are you divorcing him, but, unless you’re a 20/20/20 spouse (more on that later), you’re divorcing the military, too—and all of the benefits it provided you and your family.
Civilians feel divorce, too, and often very acutely, but they don’t lose some of the military benefits that military families enjoyed during their marriages. Whether your concern is your military health insurance, whether TriCare Standard or Tricare Prime, access to family services through Fleet and Family or other military programs, the Exchange or even just military discounts offered by independent retailers, there are a lot of advantages to being affiliated with the military, especially in Virginia.
Most military spouses I meet with are worried about what they’re going to lose by divorcing the military. It ups the stakes in a divorce, which is already a pretty high stakes proposition. In fact, for most adults, divorce is the biggest financial transaction of their lives. Think about it (even if you don’t want to) – divorce divides everything that was earned, purchased, or acquired during the marriage. I really do mean everything: retirement, pensions, stocks, bonds, mutual funds, cars, boats, tools, kitchen appliances, and even linens. Financially, there’s a lot at stake. And that’s not even considering an award of spousal support, if one is warranted in your case, or child custody, child support, or visitation!
There’s a lot at stake. You probably already know that, or else you wouldn’t be reading this article. Right?
It’s only natural to be scared. It means that you’re smart. It means that you’re actively looking for answers. You’re in the right place, and you’re asking the right questions.
There’s no question that, unless you’re a 20/20/20 spouse (again, more on that in a little bit), you’ll be giving up a lot by your affiliation with the military. And, unless you’re 20/20/20, there’s really nothing I (or any other attorney in town) can do about it. When you get a divorce, you do lose your affiliation with the military. That means that you’re losing access to a lot of privileges, which can be daunting.
Let’s talk a little about military divorce. How is it different from civilian divorce? What’s a 20/20/20 and a 20/20/15 spouse? How is military retirement divided? Will you even get any? (Because he probably told you that you won’t, right?) What’s the military ten year myth? In short, what can you expect from the process, and where on earth should you start?
Military v. Civilian Divorce
In most ways, military divorce is exactly the same as civilian divorce. The actual process itself, whether contested or uncontested, is the same regardless of whether you’re military or not.
To some extent, you have some control over the divorce process and the shape it takes. There are a lot of options when it comes to divorce, especially if you’re committed to moving forward with an uncontested divorce.
Uncontested v. Contested Divorce
An uncontested divorce is one where you and your husband can reach an agreement about how everything will be divided. How do you do that? Basically, you negotiate how everything will be divided and sign something called a separation agreement (or a marital and separation stipulation agreement or a property settlement agreement, all of which are different names for the same type of document). A separation agreement is a legal contract that formally divides all the assets and liabilities of the marriage between the two partners.
There are two really awesome things about separation agreements. First, you have a lot of flexibility when it comes to how you get your separation agreement in place. You can hire an attorney to negotiate one on your behalf. You can work with a mediator (shared between the two of you) to reach an agreement about how to divide everything. You can hire a collaboratively trained attorney and move forward with the collaborative divorce process. Feeling smart? You can even—get this—draft your own separation agreement yourself, without working with an attorney. Cool, huh? Secondly, one of the things I love most about separation agreements, is that you have the freedom to draft your agreement in a way that takes everyone’s concerns into account. We tell our clients all the time that the only limits in a separation agreement are the ones imposed by your imagination; if it’s legal, and you can agree to it, you can draft a contract that does it the way you want it done. There’s so much room for creative drafting here, and that’s really great. Why on earth would you let someone else impose conditions on you when it comes to something so important? If the two of you can reach an agreement, you can allow yourself the freedom you need to make the terms of your divorce ones that you not only can live with, but that allow you to keep your priorities at the forefront.
The major disadvantage? You can’t force your husband to reach an agreement with you. If you can’t agree, but you definitely want a divorce, you’ll have to move forward with a contested divorce instead.
You can make a decision to move forward with a contested divorce for a number of different reasons. As we’ve already briefly discussed, you may turn to a contested divorce when attempts at negotiation have failed. You may even just start there—with a contested divorce, that is—because you know that it’s unlikely that your husband will reach an agreement with you. A lot of times, divorces start out contested and then switch to uncontested later; that’s entirely up to you and the course your divorce takes.
In a contested divorce, you and your husband can’t reach an agreement, so you turn instead to the court process to settle the terms of your divorce. Ultimately, rather than reaching a decision yourself, you let the judge make the decision about how everything will be divided.
Whether you’re civilian or military, these things are true. Divorce is a process that is handled by the state courts, which is why JAG attorneys really can’t help. (They may or may not be licensed in the state where they are stationed and, in any case, they don’t handle cases in the state courts.)
So, what is different about military divorce? If all these things are the same, why do attorneys and others describe military divorce as a thing? That certainly implies that there’s something different about military divorce, as opposed to civilian divorce. Right?
Well, there is. In many ways, there are certain assets that military families have to divide that civilian families don’t. When we’re talking about military divorces, we’re also talking about things like military retirement, TSP, BAH, child custody and visitation that changes depending on when the active duty service member’s permanent duty station changes, relocation, military healthcare benefits, and more.
On Wednesday, we’ll talk more about what a military divorce entails. We will describe the differences between 20/20/20 and 20/20/15 spouses (and what happens if you don’t fall into one of these narrow categories), how military retirement is divided (including whether you’ll get any), what the military ten year myth is (and why husbands perpetuate it!), and what you can expect from the divorce process—in Virginia, anyway.
I said it before, but I’m going to say it again, because I think it’s important for you to hear—you’re in the right place, and you’re asking the right questions. You’re asking big questions, but that’s good, because it means you’re thinking far ahead. It means you’re trying to be strategic, and you’re trying to make the best possible decision, moving forward, for both you and your children. Stay tuned; we’ll cover more on Wednesday.
For more information (before Wednesday), or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys today, give our office a call at (757) 425-5200.