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Federal laws may impact a military divorce

On Behalf of | Apr 6, 2020 | Family Law

In many respects, Northern Virginia divorces involving members of the military and retirees work the same way as any other divorce. A couple will need to resolve issues about property division, child custody and support, alimony and the like.

However, there are some special federal laws which apply to military divorces but do not apply to other types of divorce.  It is important for those going through a divorce involving a member of the military to understand these laws. What follows is an overview.

Servicemembers Civil Relief Act

With respect to divorces and other family law proceedings, an active duty member of the Armed Forces may be able to request an automatic 90-day delay if her military duties prevent him or her from participating in the proceeding.

However, the solider or sailor will have to prove that he or she qualifies for this stay under the law.  Also, a judge may have some limited authority to make emergency decisions pertaining to child custody and the like.

A judge has the discretion to extend this stay for an additional 90 days.

On a related point, the Servicemembers Civil Relief Act also protects military members on active duty from a default judgment. In a family law proceeding, this means that, the military member will have the right to have an attorney in her absence and can in many circumstances delay the judgment.

To summarize, the law effectively courts to give those on active duty a chance to defend themselves and present their cases.

Uniformed Services Former Spouse Protection Act

While the Servicemembers Civil Relief Act protects military members, another federal law, the Uniformed Services Former Spouse Protection Act, grants certain rights to spouses of servicemembers who are going through a divorce.

The point of this law is to make sure that a military spouse gets his fair share of his spouse’s retirement pay. The law says that, just like any other pension or 401(k), a Virginia court can divvy up military pay according to this state’s property division laws.

The law also puts a cap on how much of a solider or sailor’s retirement is subject to division and explains the process by which a spouse can collect his share of the retirement benefits.

Residents of Arlington and the surrounding communities need to be aware that military divorces also have other nuances and complications that could affect their rights and legal interests.