The end of a marriage is frequently a sad, painful and difficult time. For military spouses, the complexities of military divorce are compounded due to the intricate details and difficult fact patterns surrounding military life and military pay and benefits. Military divorces, however, do not have to be any more painful and daunting than civilian divorces. It is important for military spouses to understand some of the basics of military divorce in order to protect their rights and transition out of the marriage as smoothly as possible.

As many stories on the matter often discuss, there are three items that repeatedly come up in military divorces: kids, pensions and spousal support. Military lifestyle and the way military personnel are paid and receive benefits all play into each of these issues. For spouses navigating a military divorce, each one of these issues will need to be discussed and decided.

The Children

If a military marriage produced children, a parenting plan will have to be established, as well as child custody and child support. In many military families pre-divorce, one spouse has taken care of the children while the other has been deployed for duty. In these cases, especially if the military spouse is still on active duty, and is often deployed, child custody may not be an issue because a judge would likely award the stay-at-home spouse either primary or sole custody.

Additionally, the issues of child support in these cases may be more readily determinable considering that one spouse will primarily care for the children and need funds from the other to do so. It is important to note that a judge would always look to the best interests of the children in signing final orders for a parenting plan and child support. Not considered is the best interests of either spouse, or what she or he simply thinks is fair.

If the child is located overseas, or the spouse has been deployed for a lengthy amount of time, additional issues may arise in establishing child support, custody, and a parenting plan. For example, if a child has resided in Germany habitually, then a German court would have jurisdiction over the child, not a Virginia Court, even if the child is a U.S. citizen and born in Virginia.

Spousal Support

The second item that often comes up in military divorces is spousal support. In military marriages, one spouse often stays at home while the other spouse is either deployed or is training or studying. Frequent domestic or international moves, and the grueling schedule of a military spouse, also contribute to one spouse’s unemployment status. For this reason, a military spouse may be required to pay spousal support until the other spouse can finish his or her education and become gainfully employed.

Pensions

Lastly, and perhaps trickiest, is the issue of the military pension. Pensions vary in value, but it is important to understand exactly how much is at stake when decided how it will factor into property division. Service members may have a Roth IRA and Thrift Savings Plan that will need to be taken into consideration during the divorce, as well as a military retirement pension. Under the Uniform Services Former Spouses Protection Act, military pensions are treated as marital property, to which non-military spouses are entitled to one-half if the marriage lasted for 10 years. Of course, it is important to note that the pension plan, like most things in a divorce, is up for negotiation between the parties.

Kids, spousal support and pensions, while frequently flagged, are by no means the only issues to be worked out in a military divorce. If you are planning to get a military divorce, you should seek out the assistance of an experienced military divorce attorney, who can fully help you understand your rights and what you are entitled to. Contact the experienced attorneys at Garrett Law Group, PLC today for a confidential consultation.

Many people are familiar with the stories of men and women falling in love while one is incarcerated. Incredibly, there are websites that exist for the sole purpose of facilitating relationships between prisoners and those on the outside. Yet it is far more common for relationships to end – rather than to begin – when someone goes to jail. A felony conviction and a lengthy jail sentence can be devastating to both the person convicted and that person’s spouse. When considering a divorce in Virginia due to an incarceration, there are several things you should know.

The Initial Requirement for a Divorce in Virginia

In order to get a divorce in Virginia, one must first meet Virginia’s residency requirements. One spouse must be an actual resident and domiciliary of the state for at least six months prior to the commencement of divorce proceedings. Given the large presence of servicemen in Virginia, the law presumes that the members of the armed services meet this requirement if stationed in the Commonwealth for at least six months. Once one party meets this requirement, the rest of the divorce process will depend on the grounds on which a party is seeking a divorce.

Incarceration as Grounds for Divorce in Virginia

Normally, Virginia mandates a year-long waiting period prior to granting a divorce. Incarceration, however, is an exception to the waiting period. Under the Virginia Code, one can seek an immediate divorce if the plaintiff – the person seeking the divorce – can establish the following requirements:

• Either of the parties to the marriage has been convicted of a felony;
  
• This party was sentenced to confinement for more than one year, and;
  
• Cohabitation has not been resumed after knowledge of such confinement.

The grounds for the divorce – in this case the felony conviction – must have occurred after the parties were married. Likewise, the felon must actually be incarcerated for some period of time for the crime committed. If the felon was convicted, but immediately given probation instead of jail time, neither spouse can use incarceration as grounds for a divorce.

A divorce when one spouse is incarcerated at the time of the divorce requires an additional step. A court will not grant a divorce until it appoints an attorney for the incarcerated spouse. Known as a guardian ad litem, this attorney represents the prisoner’s interest in the divorce. Normally the spouse seeking the divorce will be required to pay for the guardian ad litem; however, this requirement will be waived if the crime involved physical injury, sexual assault, or sexual abuse against the spouse, child, or stepchild.

Many assume that spouses of inmates initiate divorce proceedings, but this is not always the case. Some inmates want a clean break during their incarceration or a fresh start upon release. If you are incarcerated and want a divorce, begin by speaking with your spouse. Because of your limited access to information and the outside world, an uncontested divorce – one in which you both agree to the divorce and its terms – will be much more simple than a contested divorce. Regardless of whether you and your spouse agree to the divorce, it is important to consult with an attorney.

Divorcing in Virginia can be lengthy and expensive. Likewise, the courts have broad discretion in awarding child custody, and child and spousal support. If you are considering a divorce in Virginia, our experienced family law attorneys can help you navigate this complex process and get for you what you deserve.

On October 2nd, the federal government shutdown as a result of Congress’ inability to pass a federal budget. National parks closed, federal agencies shut down, and roughly 800,000 federal employees were told to stay home. Yet while the paychecks have stopped arriving, the bills have not. One such cost for which many furloughed employees must account is child support payments. But should a parent be required to continue to meet his or her child support obligations if they’re no longer receiving income? What happens when the other parent is promoted? If a parent wishes to decrease his or her child support obligation – or increase the other parent’s obligation – he or she must go to court and seek a modification.

During a divorce in Virginia, a judge determines what the non-custodial parent is obligated to contribute in order for the other parent to provide for the child. The monetary amount is determined in proportion to a parent’s gross monthly income. The court may also consider a variety of other factors, including a parent’s financial obligation to other family members and whether the child has any special medical needs.

When Can a Child Support Order be Modified?

If a parent in Virginia wants to change a child support order, either parent can seek a modification of the child support order in court. The parent will be required to show that a change in circumstances occurred that makes the obligation unfair. Since the original order is normally proportional to a parent’s monthly income, either a significant increase or decrease in income can serve as a basis to modify an existing child support order.

Suppose, for example, a father in Virginia makes $4,000 a month as a landscaper and pays $553 a month in child support payments. Several years later, the father starts a successful business selling landscaping equipment to the National Park Service. He now makes $10,000 a month, yet still only pays $553 a month in child support. This significant change in income would likely provide a basis for the mother to seek a modification of the child support order and increase the father’s child support obligation.

A decrease in income can also provide a basis for modification. Let’s suppose that the judge in the example above grants that mother’s motion for a modification of a child support order. The father is now required to pay the mother $1,014 a month. The father continues to pay this new amount until – on October 2, 2013 – the federal government closes. Unable to sell his landscaping equipment to the National Park Service and pay his employees, the father closes his business and returns to his landscaping job and monthly income of $4,000. This significant decrease in his monthly income would likely constitute a change in circumstances sufficient to support an order for a modification of child support. However, if one parent quits, refuses to take another job, or intentionally takes a lower-paying job, the court may not agree to modify the existing child support order.

If you have experienced a change in circumstances and would like to modify your child support obligation, or the obligation of the other parent, contact one of our experienced family law attorneys. Together, we will work to achieve the modification that you desire.