What to expect in a Virginia military divorce
On Monday, we talked about the differences between military and civilian divorce. So far, we’ve mostly discussed the ways that military and civilian divorces are similar. (Shocking, right?)
Well, as you already know, military and civilian divorce are a little bit different. Procedurally, they’re very similar, but there are certain assets that exist in military cases that have to be divided. Not only that, but, depending on the circumstances, there are different statuses that apply in military cases.
Many women who are married to military service members think that, to gather information, their first step should be to go see a JAG attorney. When it comes to divorce, though, a JAG attorney really can’t help. Why? Well, for one thing, divorce is handled by laws that are state specific. A military JAG attorney may or may not be licensed to practice in the state in which he or she is stationed. And, even if he (or she) were licensed in Virginia, he (or she) wouldn’t practice in our courts. JAG attorneys don’t represent clients in Virginia state courts.
Will a JAG attorney help you at all? It really all depends! Sometimes, JAG attorneys are a great source of information. I’ve had clients who have told me that they went to talk to a JAG attorney first, and the attorney gave them great information. (Of course, like I said before, the attorney still couldn’t represent the woman in state court.) Other times, I’ve heard that JAG attorneys were deliberately unhelpful, particularly when the potential client was not the active duty military service member. Sometimes, too, I have heard that JAG attorneys won’t even speak to a potential client—that, in fact, when the husband has come in first, the JAG attorneys are conflicted out and can’t talk to the wife at all. Regardless, the JAG attorneys aren’t really the appropriate forum to use to seek divorce or custody related legal assistance.
Still, there are lots of places where you can get up to date, Virginia specific information relating to Virginia military divorce cases. We talked a lot about the types of divorce on Monday, but today we are going to go more into detail about what makes military divorces different than civilian divorces.
What are 20/20/20 and 20/20/15 Spouses?
Military marriages are classified based on how long the couple have been married, how long the military service member has served, and how much of that time overlaps. Based on these things, there are certain benefits that can accrue.
A 20/20/20 spouse is one who has been married to her military spouse for at least twenty years, whose husband has served at least twenty years as an active duty military service member, and at least twenty of those years have overlapped.
Let’s talk about an example. If Ross married Rachel in 1990, he joined the military in 1994, and then they separated and divorced in 2015, Rachel is a 20/20/20 spouse. They were married 26 years, and Ross either retired after 20 years in the military (in 2014), or served in excess of twenty years. Because they were married the whole time Ross served in the military, Rachel is a 20/20/20 spouse.
Another example. If Chandler joined the military in 1980 and retired in 2000, he served twenty years in the military. If he married Monica in 1995, and they separate and divorce in 2015, they were married for twenty years. But, in this case, the twenty years don’t overlap, so Monica isn’t a 20/20/20 spouse.
What’s the difference? A 20/20/20 spouse maintains military status post divorce. In other cases, when a military couple divorces, the non-active duty spouse’s relationship with the military is terminated. On the other hand, a 20/20/20 spouse is awarded a status similar to that of a retired military veteran—which means that they are able to maintain access to military healthcare and benefits, including the exchange.
A 20/20/15 spouse is one who has been married to her military spouse for at least twenty years, whose husband has served at least twenty years as an active duty military service member, and at least fifteen of those have overlapped.
In our previous example, Monica still isn’t a 20/20/15 spouse. Let’s make her one. If Chandler joined the military in 1980, married Monica in 1985, and then Chandler retired from the military in 2000, Monica becomes a 20/20/15 spouse—regardless of when she and Chandler divorce. (Because the status is based on how much of the marriage and the military service overlap; it stops being counted if either the marriage or the military service end.)
A 20/20/15 spouse isn’t as fortunate as a 20/20/15 spouse. After 15 years, a 20/20/15 spouse is allowed to maintain access to military healthcare benefits for a year.
Military Retirement – Will you get any?
If your husband is like most military husbands, he has probably told you (emphatically) that you won’t get a cent of his military retirement. If you’re like most military wives, you’re expecting to get half of it. Right?
Military retirement is one of the most valuable assets in many military marriages. Your interest in his military retirement is calculated based on, again, how long you’ve been married, and how much of the time that you’ve been married has overlapped with his military service.
Number of years employed during the marriage
________________________________________ x 50% = marital share
Total number of years employed
Basically, your marital interest in the retirement is one half of what was earned during your marriage. If, for example, you and your husband were married for twenty years, and all twenty of those years were years that he served in the military, you’ll receive 50% of his retirement. If, on the other hand, you were married for ten years, but he served twenty years in the military, you only receive 50% of the ten years that you were actually married. You receive no benefit for time that he served as an active duty service member when you weren’t married—whether you got married later, or had already divorced, at the time that the interest in the retirement was earned. So, if you were married of ten out of twenty years that he was earning an interest in retirement, you receive 50% of those ten years, but only 25% of the total overall interest in the retirement.
Military Ten Year Myth
Lots of husbands tell their wives that they won’t receive any interest in the retirement until they’ve been married for a minimum of ten years, but that’s absolutely not true.
You begin earning an interest in your husband’s military retirement on the day that your marriage and his military service begin to overlap. Regardless of whether you’ve been married one year, three years, fifteen years, or fifty years, you are earning an interest in his retirement as long as your marriage overlaps with his service. (Of course, the same works in reverse. If you’re the active duty military service member, he earns an interest in your retirement, too. In fact, this applies to any type of retirement account, military or civilian.)
So, why ten years? Where did that come from? Well, technically, there is a small catch when it comes to military retirement where the parties have been married less than ten years. In these cases, the spouse can’t receive military retirement payments (once her spouse retires) directly from DFAS. Her ex husband receives his military retirement payments, and then he is responsible for sending her portion on to her. It’s a bit of a pain, because she has to wait to receive the money from her ex husband, but her interest in his retirement is unaffected.
After ten years, a former military spouse is entitled to receive her portion directly from DFAS.
What can you expect from the divorce process? Where should you start?
Divorce, as you can probably imagine, isn’t a whole lot of fun. But being informed about the process and what to expect beforehand can go a long way towards helping a person become prepared.
The first step, in my opinion, is to attend one of our monthly divorce seminars. We teach them twice a month, on the Second Saturday in both Virginia Beach and Newport News, and on the Third Tuesday in Virginia Beach. Each seminar lasts an hour and a half, and is taught by one of our licensed and experienced Virginia divorce attorneys. We cover the basics of the divorce process, and even take questions from the audience.
It’s a great way to get information, ask the questions that are keeping you awake at night, and make a plan for the future.
You can also make a plan to attend Girl’s Night Out. This isn’t divorce-related at all; this is just for fun. Our office sponsors these events every six weeks or so, and they’re designed to help make sure that our current, former, and prospective clients can have a (free) night out where they can socialize, network, and make new friends. They’re tons of fun (no divorce or custody talk at all!), and you should definitely plan to be there. For more information, check out our website by clicking here.
If you’re facing a military divorce case, you’re in the right place. I hope this information has helped! For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce attorneys one-on-one, give our office a call at (757) 425-5200.
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