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Servicemember's Guide to Divorce in Virginia


By James Livesay of Livesay & Myers, P.C.

Are you a servicemember who is contemplating a divorce or separation from your spouse? The failure of a marriage can be a stressful and traumatic experience. However, you can relieve some of that stress by educating yourself as to your state's divorce laws before starting the process. If you are a servicemember and live in Virginia, here is what you need to know before you begin.

Divorce Grounds

Virginia law allows for divorce on several fault-based grounds, including adultery, cruelty and desertion. Virginia also provides for divorce on the no-fault grounds of (1) separation for at least twelve months or (2) separation for at least six months, with a separation agreement and no minor children. In order for a servicemember to obtain a divorce in Virginia, he or she must reside in Virginia for at least six months prior to bringing suit. If you are an active duty servicemember and your spouse has filed a divorce suit against you, you may be entitled to a stay of the proceedings under the Servicemembers Civil Relief Act.

Separation Agreements

Separation agreements are contracts between spouses that set forth the rights and obligations of each party during the separation and upon divorce. A proper separation agreement should address all issues that could arise during the course of a divorce, including child custody, visitation and support, spousal support, and the distribution between the parties of all marital property and debts. One attractive feature of a separation agreement is that it allows the divorcing couple to determine the terms of their divorce, rather than leaving it in the hands of a judge.

Distributing Marital Property and Debts

Virginia is an equitable distribution state, which means that, unlike states such as California and Texas, there is no presumption that a husband and wife own all their property jointly and in equal shares. Instead, in Virginia the Court classifies all the parties' property and debts as marital or separate, and then distributes the marital property and debts between the parties as the Court believes is equitable given the facts and circumstances of the case. This usually, but not always, results in a 50/50 split of the parties' marital property and debts.

Only marital property, and not separate property, is subject to this "equitable distribution." Property is separate property if (1) it was acquired before the marriage, (2) it was a gift or inheritance from someone other than the parties, or (3) the property was obtained by selling or exchanging separate property. Generally, property is marital property if it is not separate property and (1) it is titled in the names of both parties or (2) it was earned or acquired during the marriage. Unless there is a clear indication to the contrary, all property acquired during the marriage is presumed to be marital property.

Of special importance to servicemembers is Virginia's treatment of military retired pay. Such pay is marital property to the extent it was earned during the parties' marriage before the parties' final separation. The "marital share" of the pay is typically calculated as a fraction equal to the number of months during which the servicemember's creditable military service and marriage before separation overlapped, divided by the total number of months of creditable military service. Under Virginia law, the non-servicemember spouse can receive up to fifty (50) percent of the marital share upon divorce. See Military Divorce - Division of Military Retired Pay for more information.

Spousal Support

In addition to distributing marital property and debts, the Court can award spousal support (alimony) to one of the parties. In considering whether to award spousal support, the Court will examine what caused the parties' marriage to break down. A finding that either party committed any fault-based ground for divorce which led to the dissolution of the marriage may prevent that party from receiving spousal support. The Court will deny alimony to a party guilty of the adultery ground for divorce except in very limited cases based on (1) the relative degrees of "fault" of the parties and (2) the relative finances of the parties.

In determining the nature, amount and duration of any spousal support award, the Court must look to a series of factors listed in Virginia Code Section 20-107.1(E), including the duration of the marriage, the financial needs of the parties, and the standard of living established during the marriage.

Child Custody and Visitation

An important question in any military divorce case involving children is whether the divorce court has jurisdiction to rule on custody and visitation. Virginia has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), along with 49 other states. The UCCJEA sets forth when a court in Virginia has jurisdiction to enter an order as to a child's custody or visitation. For example, commonly Virginia has jurisdiction due to the fact that Virginia is the child's "home state" at the time the petition for custody or visitation is filed. The term "home state" refers to the state that the child has lived in during the last six months. For infants, the home state is where the child has lived from birth. Virginia also has jurisdiction under special circumstances where, for example, the child has no home state. (Yes, it's possible). The important thing to take away is that issues regarding jurisdiction are complex and have to be addressed on a case-by-case basis whenever the simple home state test is not satisfied.

If Virginia does have jurisdiction over custody and visitation in your case, then the court that hears your divorce can also decide those issues. Courts in Virginia are required to base custody and visitation decisions on the "best interests of the child" standard. Specifically, Virginia courts must look at the factors set forth in Virginia Code Section 20-124.3 in deciding what custody and visitation arrangement would be in a child's best interest. These factors tend to favor the "primary caregiver" of the child, which in many (although not all) military divorce cases is the servicemember's spouse.

Special Rights of Servicemembers in Virginia Custody and Visitation Cases

If you are a servicemember facing deployment, it is important to know you have special rights under Virginia law. Specifically, you have the right to request visitation for one of your family members, including your current spouse if you have remarried. In addition, your petition for custody must receive precedence on the court's docket and be heard on an expedited basis.

Child Support

The amount of child support is typically determined using Virginia's presumptive guidelines, which take into account the gross monthly income of both parties and then distribute the child's presumptive need for support proportionately between the parties. The guidelines are set forth in Virginia Code Section 20-108.2 and take into account the money the parents may be spending on the child's child care, health care, and other expenses.

The starting point for any Virginia court ruling on child support is always a calculation of support per the guidelines. However, the court will hear any argument that it should deviate from the guidelines for good cause. Usually, the court must make a special finding regarding a parent's ability to provide support for the child. For example, if a parent is voluntarily unemployed or unemployed, then the court will likely impute income to that parent, meaning that the court will recalculate the guidelines using the income that party would have if he or she were working to his or her full capacity.

Military Nonsupport Policies

If you are a servicemember, please remember that you must satisfy military regulations as they pertain to issues regarding support for your family members. Because each service branch has a different methodology, you should contact your legal assistance office to determine your minimal support obligations to your spouse and child. However, please note that you are obliged to provide support according to your branch's regulations only in the absence of an agreement or court order to the contrary.

Conclusion

If you have questions regarding your rights as a servicemember in a military divorce or custody, visitation or support dispute, it is best to consult with an experienced attorney as soon as possible in the process. Look for an attorney with specific experience in military divorce cases, in the state where your divorce or custody case would go to trial.


ABOUT THE AUTHOR

This information was supplied by James Livesay, a family law attorney at Livesay & Myers, P.C. He is one of several Fredericksburg divorce lawyers in the firm, handling military and civilian divorce cases in Fredericksburg, Stafford, Spotsylvania and all across Northern Virginia. A former Navy JAG, Mr. Livesay and his firm handle a large number of military divorce cases.

James Livesay can be contacted by phone at (540) 371-4140 or or Visit Web Site



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