Military Divorce in Virginia
The experienced military divorce lawyers at Livesay & Myers, P.C. represent clients in Fairfax, Arlington, Loudoun, Prince William, Manassas, Alexandria, Fredericksburg, Stafford, Spotsylvania and all across Northern Virginia. Our attorneys are intimately familiar with issues of military retirement, the Survivor Benefit Plan, disability pay, and the Servicemembers’ Civil Relief Act.
Military Retirement Division
Federal Law. The Uniformed Services Former Spouses Protection Act (“USFSPA”) is the federal law that authorizes state divorce courts to divide a servicemember’s “disposable retired pay.” The USFSPA defines disposable retired pay as gross retired pay minus: (a) recoupments or repayments to the federal government, (b) deductions from retired pay for court-martial fines or forfeitures, (c) disability pay benefits, and (d) Survivor Benefit Plan premiums. Under the USFSPA, state divorce courts are only allowed to divide a servicemember’s disposable retired pay—not the member’s gross retired pay, and not any disability pay the member receives.
The original USFSPA, enacted in 1982, did not provide for any particular division of the member’s military retirement; it did not, for example, require that the former spouse receive 50% of the member’s retired pay. The USFSPA simply authorized states to apply their own laws regarding division of property to military disposable retired pay in divorce cases. However, the USFSPA was amended at the end of 2016 to require that states apply the so-called “frozen benefit” approach in dividing military retired pay. Under this approach, military retired pay is frozen based on the member’s rank and years of service at the time the court order dividing military retired pay (typically the final divorce decree) is entered.
Finally, the USFSPA provides that, once a state court has ordered a division of the member’s military retired pay, the Defense Finance and Accounting Service (“DFAS”) may provide direct payment of the former spouse’s share, in cases where the marriage overlapped with 10 years or more of the member’s military service. This is often referred to as the “10 year rule.” Note that even in cases where the 10 year rule is not met, the court can still award the former spouse a share of the member’s military retirement. However, in these cases, the member must pay the former spouse the share directly, as direct payment through DFAS will be unavailable.
Virginia Law. Virginia Code Section 20-107.3 provides that military retired pay is “marital property” to the extent it was earned during the parties’ marriage, and before the final separation of the parties. The “marital share” of retired pay can be defined as a fraction, the numerator of which is the total number of months the parties were married (prior to separation) during the servicemember’s creditable military service, divided by the total number of months of the member’s creditable military service. Virginia courts will typically award the spouse with a one-half (1/2) share of the “marital share.”
Where the Member is Retired. In cases where the member has already retired at the time of the divorce, determining the marital share of retired pay is relatively easy. In these cases, one is able to calculate both the numerator and the denominator of the fraction described above. For example, assume that a member serves in the military for exactly 2 years before marriage, and then serves another 18 years while married, before finally retiring. The parties then separate and divorce. In this example, the marital share of the member’s disposable retired pay is 90% (18/20), and the spouse will likely receive a total of 45% of the member’s retired pay (50% x 90%).
Where the Member is on Active Duty. In cases where the member is still on active duty at the time of the divorce, the 2016 amendment to the USFSPA would freeze the former spouse’s share as of the date of the court order dividing military retired pay. How exactly Virginia courts will define the numerator and denominator of the marital share fraction when dividing military retired pay where the member remains on active duty is now in question.
Changes to Federal Law: 2017 and 2019. The National Defense Authorization Act (NDAA) for 2017, signed into law in December 2016, drastically changes the way military retired pay can be divided in divorce cases. See Major Changes to Federal Law on Dividing Military Retired Pay. In addition, on January 1, 2019, big changes went into effect for the military retirement system for all active duty and retiring servicemembers. See Changes to Military Retirement System in 2019. If you are a servicemember or servicemember’s spouse facing a divorce, be sure to check back with the Livesay & Myers, P.C. website and blog frequently, as our attorneys will be providing further updates on this constantly changing field of law.
As stated above, federal law (the USFSPA) allows Virginia courts to divide only a member’s “disposable retired pay.” The USFSPA excludes from the definition of disposable retired pay any disability pay the member receives. A member may receive one of two different types of disability pay, both of which are excluded from the USFSPA definition of disposable retired pay: (1) military disability retired pay and (2) VA disability compensation. For examples of how each type of disability pay can reduce disposable retired pay, visit our Military Disability Pay Examples page.
The exclusion of disability pay from disposable retired pay means that the former spouse may lose out on hundreds or thousands of dollars per month that he or she might otherwise have received in a division of the member’s retired pay. This can be avoided with proper planning by the former spouse and her attorney, who could seek to limit the danger to the spouse in one of two ways.
First, the spouse could negotiate a Property Settlement Agreement (PSA) with the member, with a provision that, in the event the member’s receipt of disability pay results in a reduction of the spouse’s share of retired pay, the member will make a payment to the member each month in the amount required to “make up” to the retired pay lost.
Such a PSA is enforceable under Virginia law, pursuant to a 1992 ruling of the Virginia Court of Appeals. In the case of Owen v. Owen, 14 Va. App. 623, 628, 419 S.E.2d 267, ___ (1992), the Court of Appeals held that a member and his former spouse:
“…may use a property settlement agreement to guarantee a certain level of income by providing for alternative payments to compensate for a reduction in payment level based on a reduction in retirement benefits…. Such an arrangement does not offend the federal prohibition against a direct assignment of military disability pay by property settlement agreement.”
Second, in cases where the member refuses to enter into a PSA containing such a provision, the spouse and her attorney can simply ask the divorce court to retain jurisdiction to order the member to pay spousal support to the spouse. Then, at such time as the member receives disability pay that reduces the spouse’s share of retired pay, the spouse can ask the court to “make up the difference” by ordering the member to pay spousal support equal to the amount of retired pay she had lost.
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Our Military Divorce Lawyers
The attorneys at Livesay & Myers, P.C. have years of experience representing servicemembers and spouses in military divorce cases. From our five convenient office locations, we represent clients across Northern Virginia. Be sure to read our client reviews, then examine the profiles of each of our attorneys to find the one who is the best fit for you.
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