Virginia Filing Requirements for Military Divorce

Servicemembers and military spouses face different filing requirements than civilian divorcing couples. Rather than living in Virginia for six months before filing, a servicemember or spouse must be stationed in the state for at least six months, but doesn’t need to remain in Virginia afterward to file here. If you or your spouse resided in Virginia for six months before an overseas assignment, filing for divorce in Virginia remains an option.

Under the USFSPA, a Virginia court can divide the military pension only when it has proper jurisdiction over the servicemember. That jurisdiction is established by Virginia domicile, residence in Virginia for reasons other than military orders, or the servicemember’s consent to the court’s jurisdiction. Without one of these three bases, a Virginia court cannot divide the military pension regardless of where the divorce is filed.

Dividing Military Benefits in a Virginia Divorce

Several distinct military assets may be subject to division in a military divorce, and each carries its own rules. Under Virginia Code Section 20-107.3, military retired pay is marital property subject to equitable distribution. Virginia courts typically award the non-military spouse one-half of the marital share, which runs from the date of the wedding or the commencement of military service, whichever is later, and terminates on the date of separation.

Two additional rules shape how the pension is ultimately paid and calculated:

• The 10/10 Rule: If the marriage overlapped with at least 10 years of the servicemember’s creditable military service, the non-military spouse may receive pension payments directly from the Defense Finance and Accounting Service (DFAS). If that threshold isn’t met, the servicemember must pay the former spouse’s share directly.
• The Frozen Benefit Rule: A 2016 amendment to the USFSPA established that the former spouse’s share is calculated based on the servicemember’s rank and years of service at the time the divorce order is entered, not at retirement. Post-divorce promotions and additional service accrual don’t increase the former spouse’s share.
• Military Disability Pay: Disability pay is excluded from disposable retired pay under the USFSPA and cannot be divided as marital property, which can reduce the total amount available for division.

The Survivor Benefit Plan (SBP) designates one beneficiary. Upon divorce, the SBP can be awarded to the non-military spouse through the settlement, which can provide up to 55% of the servicemember’s elected base amount after the servicemember’s death. This election must be addressed in the divorce agreement. The Thrift Savings Plan (TSP) is a separate retirement asset that may also be subject to division as marital property and should be accounted for in any comprehensive military divorce settlement.

The 20/20/20 rule provides that if the marriage lasted at least 20 years, the servicemember served at least 20 years, and the marriage overlapped with at least 20 years of military service, the non-military spouse may be entitled to continued Tricare health coverage and base access privileges after divorce.

The Servicemembers Civil Relief Act

When divorce papers are served, the spouse receiving them is generally expected to respond within a specified period or risk a default judgment. That timeline is difficult to meet for servicemembers on active duty. The Servicemembers Civil Relief Act (SCRA) protects deployed servicemembers who can’t be located or contacted and haven’t had a meaningful opportunity to respond. This protection typically takes the form of a stay of proceedings, which pauses the case until the servicemember can appear in court and address matters like child custody and property division. A non-military spouse may still file and serve papers during a deployment, but the SCRA prevents the court from entering a default judgment solely because of the servicemember’s absence. A servicemember can also waive SCRA protections and allow the case to proceed if they choose.

Child Custody for Military Families in Virginia Beach

Child custody in a military divorce presents challenges that civilian parenting plans often don’t anticipate. Deployment schedules, potential relocation due to new orders, and extended periods of unavailability all require parenting plans built around flexibility. Virginia courts apply the best interests of the child as the governing standard, and plans for military families frequently include provisions for temporary custody modifications during deployment and make-up parenting time upon return.

Virtual visitation, including scheduled video calls and regular communication, is increasingly incorporated into custody orders when in-person contact isn’t possible. When a servicemember receives new orders requiring relocation, existing custody orders may be modified in the Virginia Beach Juvenile and Domestic Relations District Court upon a showing of a material change in circumstances. JAG legal assistance attorneys on base can answer general questions, but they can’t represent a party in Virginia state court. Contested custody and divorce proceedings may require private legal counsel.