What Servicemembers Need To Know Before Obtaining A Divorce In Virginia: Part One

Are you a servicemember who is contemplating a divorce or separation from your spouse? For most servicemembers, the failure of a marriage is one of the most stressful experiences of their lives. However, divorce does not have to be difficult, and your chances of working out an amicable separation agreement are greatly increased if you are served by competent legal counsel and educated as to the applicable law of divorce and separation in your state of residence. If you are a servicemember and live in Virginia, here is what you need to know before you begin.

I. Divorce Grounds. There are two different types of divorce in Virginia. The first, a divorce a mensa et thoro (from bed and board) does not entirely dissolve the marriage, but establishes that a husband and wife are legally separated from one another. Bed and board divorces can be granted only for fault-based grounds listed in Va. Code Section 20-95, such as cruelty, reasonable apprehension of bodily hurt, and willful desertion or abandonment. Following a bed and board divorce, a husband and wife are legally separated from one another but may not engage in sexual relations with other people or remarry. Due to these limitations, bed and board divorces are increasingly rare and have largely given way to divorces a vinculo matrimonii (from the bond of matrimony).

A divorce from the bond of matrimony, or “final divorce,” is more comprehensive than a bed and board divorce, as it completely and totally terminates and dissolves the marriage. A final divorce may be granted upon any number of fault-based grounds, including adultery, or upon the no-fault ground of the parties’ separation for a legally sufficient period. If the parties have no minor children and have signed a separation agreement, then the period is just six months. Otherwise, the period is twelve months. Following a divorce from the bond of matrimony, a party’s singlehood is reestablished, and he or she may remarry and engage in relationships with the same liberty as one who had never married in the first place.

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. See Residency Requirements For Virginia Divorce for more information on this topic.

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. The Act is intended to aid servicemembers whose duties prevent them from obtaining legal representation or appearing in Court, and in appropriate cases the Court must delay the proceedings until the servicemember is available.

II. 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. Although separation agreements are not required or even possible in every case, they are usually recommended. The main benefit of a separation agreement is that you get to determine the terms of your divorce! The alternative is to have a judge, who does not know you or your circumstances, make the decision for you. For more information on separation agreements, please see our blog posting, Property Settlement Agreements In Virginia.

III. 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.

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 the military divorce page of our website for more information on this topic.

Marital and separate debts are treated in much the same way as marital and separate property; meaning, marital debts are subject to equitable distribution between the parties, whereas parties are left to pay their own separate debts. See The Presumption Of Marital Debt In Virginia Divorce for a longer discussion regarding marital vs. separate debts in Virginia.

After classifying the parties’ property and debts as marital or separate, the Court “equitably distributes” them between the parties based upon the factors listed in Virginia Code Section 20-107.3(E), the most important of which can be paraphrased as follows:

• Each party’s contributions to the family’s well-being;
• Each party’s contributions to the acquisition, care, and maintenance of the parties’ marital property;
• What caused the marriage to break down, including whether either party committed adultery, inflicted cruelty, or wrongfully deserted or abandoned the other party;
• How and when the parties acquired specific items of marital property; and
• Any other factors the Court finds appropriate to consider to ensure a fair and equitable outcome.

IV. 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 Va. 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. Much more information on spousal support can be found in the spousal support section of our blog.

V. Conclusion. The above information covers the basics for servicemembers facing divorce in Virginia, specifically regarding grounds for divorce, separation agreements, distribution of property and debts, and spousal support. Bookmark this site and check back over the coming weeks for Part Two in this series, which will address the basics of child custody, visitation and child support for servicemembers in Virginia.

The military divorce lawyers at Livesay & Myers, P.C. have extensive experience with the unique issues that arise in military divorce cases. We represent servicemembers and spouses in Manassas, Fredericksburg, Fairfax, and throughout Northern Virginia. Contact us to schedule a consultation today.