Each state has its own set of laws governing divorce, and Virginia has a very particular set of divorce laws. However, the benefits to which servicemembers and their spouses are entitled both during and after a divorce are based on federal law—meaning they will remain the same in every state.
Given the complex interaction between state and federal law in every military divorce case, a large number of misconceptions have arisen over the years among both servicemembers and their spouses. Here are seven common myths about military divorce in Virginia:
Myth #1: If one party is an active duty servicemember, the parties have to get divorced in a military court. Military courts are used to administer discipline and punishment to military personnel and do not have the authority to grant a divorce. State courts have jurisdiction over military divorces. In Virginia, a Plaintiff may file for divorce in circuit court if one of the parties has been a resident and domiciled in Virginia for six (6) months prior to commencement of the filing.
Myth #2: A Department of Veteran Affairs (“VA”) loan can be divided or transferred during a divorce. A servicemember’s VA loan is a benefit awarded to them by the Department of Veteran Affairs and is not property that can be distributed or awarded to a former spouse.
Myth #3: When a servicemember and their spouse separate, or when one of them files for divorce, the spouse has to surrender their dependent identification (“ID”) card. ID cards are administered by the Department of Defense and are only revoked upon entry of a final order of divorce (or other disciplinary action separate from divorce). Neither separation nor merely filing a divorce action will trigger a revocation of the dependent ID card or dependent benefits provided by the Department of Defense.
Myth #4: Servicemembers are required to pay 50% of their basic allowance for housing (“BAH”) for child support. In Virginia, child support is calculated pursuant to the child support guidelines found in Virginia Code §20-108.2. A servicemember’s BAH is included when determining their gross income, but there is no state guideline requiring a servicemember to pay a particular percentage of their BAH to support their dependent child(ren).
Myth #5: VA disability pay is divided the same as military retired pay, or VA disability is not divisible and cannot be used in calculating support. Both of these are myths. VA disability cannot be divided like military retired pay, but it is counted as income for support purposes.
Myth #6: If an active duty servicemember commits adultery (or is alleged to have committed adultery), they will lose their clearance or their job. An allegation of adultery in a complaint for divorce is not conclusive evidence that adultery was committed, nor is it a guarantee that an active duty spouse will lose their clearance or their job. The Department of Defense is solely responsible for administering and revoking security clearances. The Uniform Code of Military Justice (UCMJ) governs discipline and punishment for violations of military law, which includes adultery. While a civilian divorce complaint can be used against a servicemember in UCMJ proceedings, the Department of Defense is ultimately responsible for prosecuting and punishing a servicemember for adultery—it is not done through divorce proceedings in circuit court.
Myth #7: A spouse is entitled to half of the servicemember’s Post 9/11 GI Bill benefits, or those benefits may never be divided in divorce. Again, both of these are myths. 38 U.S.C. § 3020(f)(3) strips state courts of any authority to order a division of these benefits, but it does not preclude parties from negotiating the division of GI bill benefits as part of their marital settlement agreement. In other words: GI Bill benefits cannot be taken from a servicemember, but the servicemember can elect to divide their GI Bill benefits.
If you are a servicemember or servicemember’s spouse facing separation or divorce, be sure to consult with an experienced military divorce attorney in your area. Livesay & Myers, P.C. has a team of military divorce lawyers, including a former spouse who personally navigated the military divorce process and a veteran who understands the unique challenges of a military divorce case. From our five convenient office locations, we represent clients across Northern Virginia. Contact us to schedule a consultation today.