Military Family Divorce Center

Military Divorce Frequently Asked Questions

Military Divorce FAQFrequently Asked Questions regarding Military Divorce, Child Custody and other related issues.

Military Divorce FAQ

What is Divorce Litigation?

Litigation is the most adversarial of all options available to you. It is also the most expensive. If your case involves domestic violence or intractable disagreement about how to resolve the necessary issues, you may have no choice but to litigate. Litigation may also be necessary if one or both parties are not being truthful about the information they are providing to the other side as they are trying to make agreements.

 

In litigation, one person files a complaint in circuit court stating their claims that support the grounds for divorce. The other person responds to the complaint with an answer and counterclaim.

What is Grounds For Divorce?

In Virginia, legal justification, or “grounds,” must exist before a divorce complaint can be filed with the court. Virginia Code §20-91 lists the legally acceptable grounds for divorce as:

 

  • Adultery;
  • Conviction of felony after marriage and confinement;
  • Cruelty;
  • Willful abandonment or desertion;
  • Separation without cohabitation for more than one year (six months if you have no minor children and have a separation agreement).

 

You and your spouse must agree on one of these reasons as the justification for divorce in order to have an uncontested divorce. If you agree that separation is the reason, the time specified (one year or six months) must be completed and must be provable before a divorce is filed.

 

A quick review of these grounds for divorce should make it clear that most of the legal justifications for divorce do not typically provide the basis for an uncontested divorce.  Parties that are alleged to be the “wrongful” actor under these grounds for a marital dissolution often will be inclined to contest the divorce.  The “separation without cohabitation” grounds for divorce will be the most typical basis for an uncontested divorce.  This legal grounds for a divorce does not carry the emotionally loaded connotations of grounds like “adultery,” “willful abandonment,” or “conviction of a felony.”

 

Our Norfolk Virginia divorce lawyers also recognize that the factual circumstances surrounding many military divorces also makes “separation without cohabitation” a likely grounds for an uncontested divorce.  Because military families live apart while the service member is deployed or stationed in another state or overseas, this grounds for divorce is common when at least one spouse is a member of the military.

 

Because the parties to an uncontested divorce must agree to the legal basis for the divorce and resolve all of the substantive issues to proceed on an uncontested basis, you should seek legal advice from a divorce attorney who has experience handling military divorces.  Your military divorce attorney can advise you regarding all of the issues in your divorce and make sure you understand the practical consequences of any agreement that you have reached on the issues in the case.

 

Without guidance from a legal professional, you risk the possibility that issues will crop up that you or your spouse did not consider which can derail the process of completing an uncontested divorce.  The attorney also can help carefully craft your marital settlement agreement to ensure it accurately reflects the substance of your agreement.  Although there will be a cost associated with obtaining legal advice, the cost might be limited if you are simply consulting with the attorney in a limited capacity.  Further, the cost is likely to be far more substantial if you make mistakes that cause problems in any of the following ways:

 

  • Your uncontested divorce becomes a full blow litigated divorce.
  • You fail to address critical issues that impact the fairness of the financial settlement.
  • You must repeatedly engage in post-judgment proceedings to clarify the terms of the judgment.

 

The most important reason to seek legal advice prior to pursuing an uncontested divorce is to get informed input on whether this is the most appropriate option given your circumstances.  An uncontested divorce offers many benefits, but it is not right for all parties under all circumstances.  Input from a knowledgeable Newport News uncontested divorce attorney can prevent considerable grief and delay if you would be better served to pursue another avenue to resolve your divorce issues.

Why Hire A Military Divorce Lawyer?

The divorce process is complicated and stressful under the best of circumstances, but the challenges posed to military families are more significant.  If you or your spouse is a member of the armed services, you should have an experienced Virginia military divorce lawyer to help you navigate the special issues involved in the marital dissolution process.  Military families facing divorce face special legal and logistical issues

What is the difference between an un-contested divorce and a contested divorce?

In any divorce, the issues that have to be decided are what grounds you will be divorced upon; what property you own, whether the property is marital, separate or a combination of both; how the property will be divided; how debts will be divided; whether spousal support will be paid; where the children will live and what the parenting schedule will be (custody and visitation); and how much child support will be paid.

You and your spouse can either use a non-court method to help you come to an agreement or you can use the court system. Using the court system and a judge to help decide these issues, is a the process of a Contested Divorce.

An uncontested divorce has the appeal of reducing the stress, expense and conflict that can accompany a divorce, but you need advice and assistance from an experienced Virginia Beach attorney to protect you even in an uncontested divorce.  To keep your divorce uncontested, you need to have a separation agreement. Sometimes people think they can just write their own agreement or that they can download something from online. Unfortunately, this often leads to one or both parties losing benefits and protections the law gives them because they agree to something that is not in their interest. Once an agreement has been signed, even if it gives away things that the law would have otherwise protected, it is difficult, if not impossible, to regain those things.  Although some people are hesitant to retain an experienced divorce lawyer because they are afraid it will cause more conflict, the best way to keep a divorce uncontested is to work with an experienced divorce attorney who can make sure you understand your rights, options and the likely outcome if a judge must rule on potential issues in your divorce. It is also important to choose an attorney who has a proven track record of supporting non-adversarial divorce methods if you want to make sure you know your rights but that your situation stays respectful and out of court.

Do we need to go to court?

Not necessarily. You have a number of different alternatives, considering how to handle your divorce. Not going to court at all, by using mediation or a process called collaborative practice, all the way to going to court.

You have many different options and it would be important for you to come in and speak to an attorney to find out what’s going to work with your situation best.

So if we’ve been married ten years, does my spouse get any military retirement?

Well, that depends. The short answer is, probably. Your spouse may be entitled to a portion of your retirement even if you’ve been married for one day. The question is, how much?

The court will consider what’s called the marital share of your retirement. That’s the part of your retirement that you’ve earned while you’ve been married and that’s the part that your spouse may have a right to have a portion of. The amount will be determined by the court or through negotiations between you and your spouse.

We haven’t been married for ten years. Does my spouse get any military retirement?

The answer to that question is probably. The reality is that your spouse is entitled to some share of your retirement even if you’ve only been married for one day.

The court will decide what percentage of the retirement your spouse is entitled to. You can also make an agreement with your spouse in negotiations about what percentage your spouse will receive.

So if my spouse gets remarried, can I stop paying them military retirement?

No, you can’t. The court views your military retirement as a benefit that your spouse has earned. That seems unfair to many people, and we understand that. However, that is how the law views it. Your spouse is entitled to that share of the marital part of your retirement, regardless of whether they remarry or they stay single.

Will I have to pay spousal support?

You may. The reality is that spousal support is determined by a certain number of factors that the law spells out. The judge is the one who would decide whether or not you have to pay spousal support if you go to court.

You will present evidence, as will your spouse as to whether or not support is payable. The main factor is, what is your ability to pay and what is your spouses need for spousal support. If you choose a non-court method, this is something that would be negotiated.

Can I get spousal support?

You may be able to get spousal support.

That will depend on your income, on your spouses income, the length of your marriage and the reason that your divorce is occurring. The court decides spousal support based on certain factors that are spelled out by the law. You will present evidence about your need for spousal support.

Your spouse will present evidence about their ability to pay spousal support, and the court will determine whether spousal support will be paid, and how much. If you choose a non-court option, this is something that can be negotiated.

I am active duty military. Can my spouse move out of state with our children if I don’t want her to?

The short answer to that is maybe.It’s a difficult question to answer. These cases, they are called relocation cases. The court will determine whether it is in the child’s best interest and above that whether the child has an independent interest in relocating out of state.

No matter what happens, unless you negotiate through a non-court option, this type of matter would be the subject of a difficult court exchange.

 

Can I get custody of my children if I’m on active duty?

The possibility is definitely there. It depends on a lot of different factors that are spelled out by the law but the bottom line is, if you’re in court and asking a judge to make the decision the judge will consider what is in the best interest of your child.

So if it’s in your child’s best interest to remain with you, even though you’re on active military duty, then yes, you can get custody of your child.

 

I’m a military spouse. Will I be able to keep my benefits?

If you’ve been married for at least twenty years, if your spouse has been in the military for at least twenty years, and if your marriage has overlapped the military service by twenty years, then the answer is yes.Those benefits have accrued to you as your right, and the military appreciates your service as a military spouse. You will keep those benefits.

The down side is that if you have not been married for twenty years, while your spouse has been on active military duty, then you may not be able to keep any of your benefits. It will depend on exactly how long you were married, but your benefits, if you’re able to keep any of them, would be reduced.

It would be important for you to come in to see an attorney to find out what your options are.

 

How much will my divorce cost?

That’s a good question. It’s really very difficult to tell. Unless you have an uncontested divorce, meaning that you already have a written agreement that covers all of the things that have to be decided in a divorce, it can get to be quite expensive.

The best way for you to control costs in your divorce is to choose a non-court method for settling your differences with your spouse. Those methods can include: negotiations, they can include mediation, or they can include a process called collaborative practice. Any of those options will be far less expensive than hearing your divorce in court.

 

Why come see you, versus somebody else down the street?

I think I really take the time to listen to my clients. I find out what’s really happening in my clients situation and then I talk with them about what the best solution for them is.

Most of the time it’s going to be a non-court solution, it’s going to be mediation or collaborative practice, but sometimes there’s no alternative to court given a certain clients situation.

I’m getting a divorce. How do I keep this a secret?

Sure. One of the best things that you can do to keep things confidential and to maintain the most control over your situation is to choose a non-court option. There are a number of options available. There’s mediation, there’s collaborative practice where you would have a team of professionals to support you, and all of those would keep your process private. The schedule that we can work with you on those methods, work around your schedule, not the courts schedule. There are much better alternatives to keeping things quiet.

How can you work around my schedule?

We offer appointments that are outside of traditional business hours, when we’re doing a non-court option. My initial consultations are always during business hours, but after that, we can be flexible with scheduling to meet your needs and to meet the needs of your family.

Why should I choose a non-court option?

If your situation is one that does not involve domestic violence, a non-court option is almost always the best way to go. The bottom line is it’s private, it’s confidential, and it can be focused in on what your needs are. You’ll maintain the most control of your situation, you won’t have a stranger making decisions about your life, and you and your spouse will come up with an agreement that both of you can live with.

My spouse is deployed. Can I file for a divorce without them being here?

Well in certain circumstances you can. Your spouse is protected by certain laws that would prevent them from having to answer a civil lawsuit, while they’re on deployment. However, in certain circumstances, for example if you and your spouse already have a separation agreement and your spouse agrees for the divorce to be filed then yes, you can file for a divorce.

In fact, the reality is you can file for a divorce if your spouse is deployed but hearing the divorce unless your spouse has agreed would be delayed until your spouse returns.

So how long is the whole process going to take, start to finish?

Well it depends on what method you choose.

If you choose litigation it could stretch on for years. You cannot file for a divorce in most circumstances until you and your spouse have lived separate and apart for more than a year. Under certain circumstances you could file sooner but the reality is typically, it will take at least a year for a divorce to be complete.

Now, that whole time doesn’t have to be taken up with fighting. If you choose a non-court option, either mediation or collaborative practice, you could come to an agreement within a few months and then the rest of the time is just spent waiting until the statutory time runs out, so that the divorce can be filed. With a litigated divorce you’ll be under stress and in court for at least a year if not longer.

Does my deployment time count towards my year separation?

It can. It depends on whether you or your spouse intended to separate at the time of your deployment, with the intention of seeking a divorce. If you did intend to remain separated and to seek a divorce at the time of your deployment then yes, that time period could count, but if that wasn’t your intention or if it wasn’t your spouses intention then the clock would start running at the time the intention was formed.

What do you like best about helping military families through the divorce process?

I appreciate the service that military families have given to us. I think that it’s very important to reduce the stress that both the family and the military member are going through, when their family is in crisis. So, I love to help military families reduce the stress of their struggle and come to a good solution that works for everybody.