## Military divorce in West Virginia Military divorces follow most state-law rules — but layer federal protections, unique pension-division rules, and special service-member rights on top. Both service members and their spouses face issues that civilian divorces don't. ## Where to file Military families have flexibility on filing: - **Service member's state of legal residence** (state of domicile) - **State where service member is stationed** - **State where the spouse lives** Each state has different residency periods and laws — choosing the right state can dramatically affect outcomes. ## Servicemembers Civil Relief Act (SCRA) Federal **SCRA** (50 U.S.C. § 3901 et seq.) protects active-duty service members from default judgments and gives them rights to: - **Stay civil proceedings** for at least 90 days when military duties materially affect ability to defend - **Set aside default judgments** entered while in service - **Cap interest rates** on pre-service debts at 6% - **Terminate residential / cell-phone leases** - **Postpone evictions** SCRA stays don't last forever — courts can require evidence that military duties truly prevent participation. ## Service of process on a service member Active-duty service members can be hard to serve: - Personal service typically required - Stationed in different state, base access restrictions - Deployed overseas - Moved post-PCS without forwarding address **SCRA Affidavit** required confirming whether respondent is on active duty. False affidavits = federal criminal exposure. ## Military pension division — USFSPA **Uniformed Services Former Spouses' Protection Act (USFSPA)** governs division of military retirement pay: **Key rules:** - State court can divide "disposable retired pay" as marital property - DOES NOT create automatic 50/50 split — state law decides division - Federal limit: spouse cannot receive more than 50% of disposable retired pay (with limited exceptions) **Frozen Benefit Rule (post-2017 NDAA):** - Pension calculated based on rank and years of service AT DIVORCE - Not at retirement - Significantly reduces former spouses' shares for younger service members at divorce ## The 10/10 rule If marriage lasted 10+ years AND overlapped with 10+ years of service: - DFAS (Defense Finance & Accounting Service) pays former spouse DIRECTLY - Otherwise, service member must pay former spouse and former spouse must rely on enforcement ## The 20/20/20 rule Former spouses qualify for FULL military benefits (commissary, exchange, healthcare via TRICARE) if: - Marriage lasted 20+ years - Service member served 20+ years - Marriage and service overlapped 20+ years **20/20/15** former spouses get 1 year of transitional TRICARE only. ## Disability pay **VA disability and military disability pay** is generally NOT divisible as marital property. This causes major issues — service members can sometimes structure compensation to reduce "disposable retired pay" by waiving regular pension in favor of VA disability: - Reduces what former spouse receives - Howell v. Howell (2017) — Supreme Court allowed this; states can't compensate the former spouse for the loss - Some states craft creative remedies (alimony adjustments, indemnification clauses) ## Survivor Benefit Plan (SBP) **SBP** allows former spouses to receive a percentage of military pension after service member's death — but only if elected: - Requires court order designating former spouse as SBP beneficiary - Premium typically deducted from retirement pay - Without SBP, pension share ENDS at service member's death ## Child custody and military life Military service creates unique custody issues: - **Frequent relocations** (PCS every 2-3 years) - **Deployments** of 6-12+ months - **Family Care Plan** requirements - **UCCJEA** (Uniform Child Custody Jurisdiction and Enforcement Act) plays out unusually - **Servicemembers Civil Relief Act + Uniform Deployed Parents Custody and Visitation Act** protect deployed parents from custody changes solely due to deployment ## Spousal / family support during separation Military regulations require service members to provide reasonable support to family members even before formal divorce / court order: - **Army:** AR 608-99 - **Navy / Marines:** Specific service regulations - **Air Force:** AFI 36-2906 - Failure to comply can result in non-judicial punishment (NJP) ## Deployments and divorce If divorce is filed during deployment: - SCRA stay typically granted - Service member's rights protected - Court generally won't enter default - Custody decisions postponed Some military families negotiate **family care plans** that reduce deployment-divorce conflicts. ## Specific advice for service members - Don't ignore divorce papers — file for SCRA stay if needed - Get military legal assistance (free) for initial guidance - Hire civilian family-law attorney for actual representation - Document service obligations (orders, deployment notices) - Don't transfer assets to evade obligations - Consider mediation — military legal assistance offices often facilitate ## Specific advice for spouses - Document service member's pay, allowances, benefits - Obtain Leave and Earnings Statements (LES) - Identify pension entitlement carefully (use frozen-benefit calculations) - Apply for Survivor Benefit Plan election - Consider 10/10 / 20/20/20 timing if close - Know the rights you'll lose (ID card, base access, healthcare) - Apply for unemployed military spouse benefits (Transitional Assistance, etc.) ## What you should do Military divorces are technical. Get a West Virginia family-law attorney with military-divorce experience — many advertise specifically. Free military legal assistance helps with initial guidance but cannot represent you in court. Most West Virginia military-divorce attorneys offer paid initial consultations. --- *This guide is general information about West Virginia law and federal military protections as of early 2026 and is not legal advice. Military divorce involves complex federal-state interactions. Talk to a licensed West Virginia family-law attorney with military experience about your specific case.*