Virginia Military Divorce Attorney

Last reviewed September 2026.

A military divorce in Virginia is decided under Virginia law, but federal statutes control several of the most consequential issues. The Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408, determines whether and how military retired pay can be divided. Federal law governs Survivor Benefit Plan coverage, TRICARE eligibility, and the protections of the Servicemembers Civil Relief Act. VA disability compensation is largely beyond the reach of a divorce court. A Virginia decree that is sound under state law can still be unenforceable as to retired pay, or valid but unpayable by the Defense Finance and Accounting Service (DFAS). The difference is usually made in the drafting.

Northern Virginia has a large active-duty, retired, and federal community, with families connected to the Pentagon, Fort Belvoir, Quantico, and commands across the region. This page explains the rules that most often decide the outcome in those cases.

Jurisdiction: Three Separate Questions

Before any issue is decided, three jurisdictional questions must be answered. A case can satisfy two and fail the third.

1. Can a Virginia court grant the divorce? Va. Code § 20-97 requires that one party have been a bona fide resident and domiciliary of Virginia for six months before filing. A service member stationed or residing in Virginia for six months or more before filing is presumed to be domiciled here. The presumption is rebuttable, and it can be contested.
2. Does the court have personal jurisdiction over the service member for support and monetary awards? This is decided under ordinary Virginia jurisdictional rules.
3. Can the court divide military retired pay? This is a separate and narrower federal test. Under 10 U.S.C. § 1408(c)(4), the court must have jurisdiction over the member by reason of residence other than because of military assignment, domicile, or consent. Being stationed in Virginia may be enough for the divorce, but it is not enough, on its own, for the court to divide retired pay. Domicile or consent must be established.

The Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act (50 U.S.C. §§ 3931 and 3932) protects members whose service affects their ability to participate in the case. It works through two distinct mechanisms. One protects a member who has not appeared, requiring an affidavit of military status and the appointment of counsel before a default judgment may be entered. The other allows a member who has notice of the case to request a stay of at least 90 days. A stay request must be supported by the member’s own statement of when he or she will be available and by a statement from the commanding officer that leave is not authorized. An order dividing retired pay must also certify that the member’s SCRA rights were observed; without that certification, DFAS will not honor it.

Dividing Military Retired Pay

What is divisible: “disposable retired pay”

Federal law permits a state court to treat a member’s disposable retired pay as marital property. That is total retired pay less specified deductions under 10 U.S.C. § 1408(a)(4)(A), including amounts waived to receive VA disability compensation and, in some cases, the Survivor Benefit Plan premium. DFAS pays only on disposable retired pay. An agreement that awards a percentage of “gross” retired pay describes a figure DFAS will not use, and a court cannot simply rewrite the parties’ agreement afterward to fix it. The terms must be right when the agreement is signed.

The Virginia approach: the marital share

Under Va. Code § 20-107.3(G)(1), the court may award a percentage of the marital share of a pension. The marital share is the portion earned during the marriage and before the last separation. No award may exceed 50 percent of the marital share of the benefits actually received. The statute provides that any determination of military retirement benefits “shall be in accordance with” the USFSPA.

The frozen benefit rule

For divorces final after December 23, 2016, federal law changed how retired pay is valued when the decree comes before the member retires. Under 10 U.S.C. § 1408(a)(4)(B), the divisible amount is based on the member’s retired pay base and years of service on the date of the decree, increased by cost-of-living adjustments. It is not based on the member’s rank and service at actual retirement. Promotions and years of service after the divorce no longer increase the former spouse’s share. The Court of Appeals of Virginia applied the rule in Starr v. Starr, 70 Va. App. 486 (2019). In a case where the member is close to a promotion or a longevity increase, the timing of the final decree matters. An order under the frozen benefit rule must also state specific hypothetical figures that take time to assemble.

Two different 50 percent limits, and the 10/10 rule

• Virginia’s limit. An award may not exceed 50 percent of the marital share of the benefits actually received.
• The federal payment limit. DFAS will not pay more than 50 percent of disposable retired pay under all property orders combined (§ 1408(e)(1)).
• The 10/10 rule. DFAS pays a former spouse’s property share directly only if the marriage lasted at least 10 years during which the member performed at least 10 years of creditable service (§ 1408(d)(2)). This rule governs direct payment, not the court’s power to divide. A shorter marriage can still support an award, but the payment must be made by the member rather than by DFAS. It does not limit child support or spousal support.

A property award stated as a percentage of disposable retired pay carries future cost-of-living increases (§ 1408(d)(8)); a fixed dollar award does not. That is a drafting choice with consequences for decades.

VA Disability and Combat-Related Special Compensation

A retiree who receives VA disability compensation must generally waive an equal amount of retired pay. The waived amount is excluded from disposable retired pay (§ 1408(a)(4)(A)(ii)). The waiver can reduce a former spouse’s share, sometimes years after the divorce.

• A court cannot order indemnification. In Howell v. Howell, 581 U.S. 214 (2017), the Supreme Court of the United States held that a state court may not order a veteran to indemnify a former spouse for the reduction caused by a disability waiver, whatever the order is called.
• The parties can agree to it. In Yourko v. Yourko, 302 Va. 149 (2023), the Supreme Court of Virginia held that Howell does not prevent a Virginia court from enforcing an indemnification provision the parties themselves negotiated. The court relied on an agreement that did not specify disability pay as the source of payment.

For a non-military spouse, protection against a future waiver has to be negotiated into the settlement agreement at the outset. For a service member, the question is what obligation the agreement creates if a waiver later occurs. Neither can be fixed after the fact by asking a court to add terms the parties did not write.

The Survivor Benefit Plan

A former spouse’s share of retired pay ends when the retiree dies. The Survivor Benefit Plan (SBP) is what can continue a benefit after death, and spouse coverage does not survive the divorce automatically. Under Va. Code § 20-107.3(G)(2), the court may order former-spouse coverage and decide who bears the premium.

The deadlines are strict:

• The member’s election. It must be received by the service within one year after the date of the decree (10 U.S.C. § 1448(b)(3)(A)(iii)).
• The former spouse’s deemed election. If the member does not act, the former spouse may request a “deemed election.” The request must be received within one year of the date of the court order or filing (10 U.S.C. § 1450(f)(3)). The former spouse should not rely on the member to act. This date belongs on the calendar the day the order is entered.
• Remarriage. Former-spouse SBP coverage ends if the former spouse remarries before age 55 (§ 1450(b)(2)).

TRICARE and Military Benefits for Former Spouses

Continued TRICARE eligibility for an unremarried former spouse depends on federal thresholds (10 U.S.C. § 1072(2)). The 20/20/20 rule requires at least 20 years of marriage, at least 20 years of creditable service, and at least 20 years of overlap between them. The former spouse must also lack employer-sponsored health coverage. Where the marriage and service overlapped at least 15 but fewer than 20 years, the 20/20/15 rule provides transitional coverage for one year after a decree entered on or after April 1, 1985. These thresholds are measured on the date of the final decree, so the timing of the decree can decide eligibility.

Military Pay and Support

For child support under Va. Code § 20-108.2, and for spousal support, military income includes base pay plus allowances such as the Basic Allowance for Housing and the Basic Allowance for Subsistence, and special pays. Many of those allowances are not taxable and do not appear on a W-2. The Leave and Earnings Statement (LES) is the document to review, ideally for twelve consecutive months. Whether VA disability compensation is counted as income for support is a separate question that turns on the specific facts. See the spousal support page.

Custody, Visitation, and Deployment

Virginia’s Military Parents Equal Protection Act (Va. Code §§ 20-124.7 through 20-124.10) addresses deployment directly:

• An order limiting a deploying parent’s custody or visitation because of deployment must say so and must be entered as a temporary order.
• On the deploying parent’s motion, the court may delegate that parent’s visitation to a family member during deployment if doing so is in the child’s best interests.
• When the deploying parent returns and moves to amend, the court must set a hearing within 30 days. The non-deploying parent bears the burden of proving that reinstating the pre-deployment order is no longer in the child’s best interests.
• Temporary orders must require the non-deploying parent to accommodate the deploying parent’s leave schedule and facilitate telephone and electronic contact. The deploying parent must provide timely leave information.
• Where a deploying parent cannot appear, the court may, for good cause, allow testimony by telephone or video.

Custody is otherwise decided under the best-interests factors of Va. Code § 20-124.3. See the custody and visitation page.

Documents to Gather Early

• DD Form 214 and retirement orders, which establish retirement dates and whether the frozen benefit rule applies;
• twelve months of Leave and Earnings Statements;
• the Retiree Account Statement, which shows whether any reduction came from a disability waiver or a disability retirement;
• VA disability rating decisions and CRSC determinations;
• any existing SBP election;
• documents bearing on domicile, such as the state of legal residence on the LES, voter registration, state tax filings, and vehicle registration.

Frequently Asked Questions

Is my former spouse entitled to half of my military retirement?

Not automatically. A Virginia court divides the marital share, the portion earned during the marriage, and may award up to 50 percent of that share. The divisible amount is based on disposable retired pay. If the divorce is final before retirement, it is also subject to the frozen benefit rule.

Does the 10/10 rule decide whether a pension can be divided?

No. It governs only whether DFAS will pay the former spouse’s property share directly. A Virginia court can divide military retired pay after a shorter marriage.

Can a court make a veteran pay back a share lost to a VA disability waiver?

A court cannot order it (Howell v. Howell). A Virginia court can enforce an indemnification term the parties themselves agreed to (Yourko v. Yourko). The protection has to be negotiated.

What happens to Survivor Benefit Plan coverage at divorce?

Spouse coverage does not continue automatically. Former-spouse coverage must be ordered or agreed, and elected or deemed elected within one year.

Can a Virginia court hear my case if I am stationed here but my home of record is another state?

Often yes for the divorce itself, under the six-month presumption in § 20-97. Dividing retired pay requires more: domicile in Virginia or consent to the court’s jurisdiction under 10 U.S.C. § 1408(c)(4).

Speak With a Virginia Family Law Attorney

Military divorces reward early attention to documents, jurisdiction, and deadlines. That applies whether you are the service member or the spouse, and whether retirement is years away or already in pay. Contact me to schedule a consultation. For an overview of the Virginia process, see the Fairfax County divorce process and Honoring Service: Military Divorces in Virginia.

This page provides general information about Virginia and federal law and is not legal advice. Reading it does not create an attorney-client relationship. The application of the law depends on the specific facts of each case, and federal military benefit rules change periodically.