Between 1940 and 1944, divorce rates in America rose from 16 per 100 marriages to 27 per 100 marriages, according to Mintz & Kellogg1. World War II created quick marriages, strained relationships, and awkward homecomings. Needless to say, divorce during deployment is still with us, and still a challenge to navigate.

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Divorce While Deployed

Many Virginia marriages end because one spouse or another feels adrift or without control. A military service member has no control over deployment. Sent overseas for six months or a year or longer, the service member cannot easily return to Virginia for a civil legal matter. Six months or a year is plenty of time for the necessary separation period leading to a divorce.

Divorce for a military family can take four forms:

  1. You are the deployed service member and seek a divorce
  2. You are the deployed service member whose spouse seeks a divorce
  3. Your spouse is the deployed service member and you seek a divorce
  4. Your spouse is the deployed service member and seeks a divorce

All four scenarios have protections in place to prevent hasty dissolution of marriages from the same frustration those World War II folks felt: separation, loneliness, lack of affection, no intimacy. Those protections also allow service members to use Virginia’s legal system, even while overseas.

Does Deployment Count as Separation?

The separation necessary for most Virginia divorces is:

  • Six months for a childless marriage
  • One year for a marriage that produced children (naturally or by adoption)

Your time (or your spouse’s time) on deployment counts as living “separate and apart” under Code of Virginia § 20-91. Depending on your use of some legal safeguards, you can separate and be divorced in as little as eight months, even while serving in the military.

Servicemembers Civil Relief Act

The SCRA exists to keep deployed military personnel from facing civil lawsuits while on bases or stations far away from home. Through a stateside attorney, an overseas service member can have a judge stay (delay) any civil action for 90 days. Under some circumstances, the stay can be extended.

The SCRA works in all four cases:

  1. You can start divorce proceedings from overseas deployment, start them stateside and then be deployed, and ask for a hold on proceedings for 90 days (three months)
  2. While you are overseas and learn your spouse wants a divorce, you can have your attorney enter a plea to delay the divorce for 90 days
  3. Your overseas spouse can request the 90-day relief through SCRA if you, in Virginia, file for divorce before or during your spouse’s deployment
  4. Your overseas spouse can have a Virginia attorney file for divorce while on deployment, with the attorney requesting a 90-day stay as the case proceeds

The SCRA is a powerful tool no matter which side of a divorce you are on:

  • You can be the plaintiff (the spouse seeking divorce) and use it to hold matters in abeyance until you can get back to Virginia
  • You can be the defendant (the spouse being divorced) and use the SCRA to give yourself more time to deal with the proceedings

Virginia Military Parents Equal Protection Act

In addition to the guardrails provided by SCRA, Virginia has its own law, the Military Parents Equal Protection Act. Divorcing during deployment brings with it five basic issues, three of which revolve around children:

  1. Child custody
  2. Child support
  3. Parenting time schedules (visitation)

The Virginia Military Parents Equal Protection Act limits, in the words of Virginia’s legislature,

“a court’s ability to permanently modify orders regarding the custody, visitation, or support of a child due to changed circumstances resulting from one parent’s military service.”

Modifications made to such orders are only effective for the length of the parent’s military service. The act affects combat deployments, contingency operations, or natural disasters requiring the use of orders that do not permit any family member to accompany a military parent.

The law also imposes a legal duty on the non-military parent to accommodate the rights and leave schedule of the military parent. Your family law attorney is best equipped to discuss the pertinent details of the Act with you.

Should You Use a Military Attorney?

If you are deployed and seeking a divorce, you may be tempted to use a military lawyer to help you. The military attorney will not be familiar with Virginia’s court procedures. That JAG may not even know the legal procedures for a divorce. An attorney attached to the JAG Corps is, at a basic level, working to keep you in the service. The attorney’s mission is not to spend long hours zealously pursuing your divorce.

If your spouse or you are a resident of Virginia, you are better off using a Virginia-based attorney specializing in family law. Consider your difficulties if you are deployed:

  • You have limited time to speak with or email your stateside attorney
  • Time zone differences will almost certainly force asynchronous communication — you could send something in your morning that your attorney does not see until nighttime in Virginia
  • You may be limited to words only, without the ability to scan documents, send pictures, or transfer audio
  • Your time is not your own; you cannot sit down every day and send out long emails

Having a Virginia-based attorney working your case while you (or your spouse) is on deployment, you can rest easy. Your rights are being safeguarded, your goals are honored, and the proceedings can move or not move as your circumstances require.

The Firm For Men has extensive experience with helping Virginia’s military men deal with all matters of family law. Call our Virginia Beach office at (757) 383-9184 or contact us online today to schedule a consultation.