Switch to ADA Accessible Theme
Close Menu
  • John C. Whitbeck, Jr.

    Partner

    John C. Whitbeck, Jr. practices in the following areas of law: Family Law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Mediation, Arbitration, Relocation Cases, Domestic Violence, Criminal Law, DUI/DWI, Reckless Driving, All Felonies, All Misdemeanors, Juvenile Crimes, Mental Health Law, Civil and Business Litigation, Construction Litigation, Education Law, Election Law, Debt Collection, Consumer and Lemon Law.

    Learn More »
  • Ruth M. McElroy

    Partner

    Ruth M. McElroy practices in the following areas of law: Family law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Relocation Cases, Pre and Post Marital Agreements, Domestic Violence, Reckless Driving, DUI/DWI, Juvenile Crimes, Felony and Misdemeanor Crimes, Traffic Offenses, Debt Collection, Civil and Business Litigation. She serves the Virginia Court system as a Guardian ad litem.

    Learn More »
  • Jennifer D. Cisneros

    Partner

    Jennifer D. Cisneros practices in the following areas of law: Family law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Relocation Cases, Domestic Violence, Juvenile Crimes, Reckless Driving, DUI/DWI, Estate Planning, Wills and Probate, Trusts, Civil and Business Litigation and Debt Collection.

    Learn More »

USFSPA and Military Divorces in Virginia

MilitDiv

If you or your spouse is in the military and you’re preparing for a divorce, you may have heard of the USFSPA. This is the Uniformed Services Former Spouses’ Protection Act. It is a federal law that addresses a variety of concerns that are specific to divorcing military couples. Military couples may be dealing with unique situations related to military retirement benefits, healthcare benefits, eligibility for the commissary, etc.

Through the USFSPA, the states are given authority to award military retirement pay to a former spouse. The Act also gives states direction on how to enforce this through the Department of Defense. Don’t make the mistake of assuming that the USFSPA automatically grants you access to your ex’s retirement accounts or vice versa. The court would need to issue an award that entitles you or your ex to the military spouse’s retirement pay in the final divorce decree.

If you or your soon-to-be-ex are active military, it’s important to retain an experienced Leesburg divorce attorney who can help protect your rights and ensure you receive the benefits you’re entitled to. 

What is the 10 Year Test and How Does it Affect Retirement Pay?

When dealing with military divorces, there is something called the 10-year-test that you need to be familiar with. If the court declares your ex-spouse’s military retirement to be marital property, you might be able to receive payments directly from the Finance Center if you meet the criteria under the “10-year-test.” The eligibility requirements state that you must have been married to the military member for a minimum of 10 years and he or she must have performed a minimum of 10 years of military services that qualify for retirement purposes.

If you meet the requirements under the 10-year-test, then you will need to ask the court to prepare an order that states your divorce award can be made as direct payments from the military ex-spouse’s retirement pay.

What is the Process Once the Military Member Passes Away?

Typically, when the military ex-spouse passes away, the Act says the award would stop. However, there is a way that an ex-spouse may still receive some benefits if the plan carries a Survivor Benefit. If the military member elected that coverage, it would allow further income payments after the military member’s death. If the non-military spouse is the one who passes away, the payments will cease. There is no way to assign the payments to your estate or your heirs outside of a survivor benefit.

USFSPA Will Not Speed Up the Ex-Spouse’s Retirement

Some people wonder if receiving an award under the USFSPA means they can get the money prior to their ex’s actual retirement. The simple answer is no. There is a provision of the act that specifically forbids a state court from ordering a military member to retire early so the retirement pension can be divided during the divorce settlement.

Retaining a Leesburg Divorce Attorney

If you or your spouse is in the military, you should not necessarily proceed with filing for divorce on your own and unrepresented. The divorce process can be more complex when one or both spouses are in the military. The Leesburg divorce attorneys at Whitbeck Cisneros McElroy PC have years of experience handling divorces involving active military members. Contact our office at 703-997-4982 to schedule an initial consultation.

Resource:

dfas.mil/garnishment/usfspa/legal.html

https://www.whitbecklegal.com/what-is-a-virginia-qdro-and-how-does-it-affect-my-divorce/

Facebook Twitter LinkedIn

© 2017 - 2020 Whitbeck, Cisneros, McElroy, P.C., Attorneys at Law. All rights reserved.
This law firm website is managed by MileMark Media.

Close

WE ARE OPEN!

Governor Northam’s Executive Order 53 provides that businesses that offer professional rather than retail services may remain open. Our firm is continuing to operate to ensure you and your family have advocates available for whatever legal issue you face. For clients who prefer, we can arrange meeting by Zoom or other video-conferencing. We are also implementing internal procedures to provide a safe environment in the office. Please contact us at 703-777-1795 or schedule an appointment today!