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Military Divorce

Military personnel are involved in the same domestic situations as civilians - divorce, separation, custody, support, and property division. Yet when one party is a member of the United States Armed Forces, special issues arise that makes a divorce case more difficult. While money and children cause the most controversy in any divorce, the military lifestyle provides for unique challenges.

Frequent Deployments and PCS moves can complicate Custody and Visitation matters. Courts, when deciding in such matters will apply the Best Interest of the Child Standard. Therefore, frequent moves and long deployments can affect the service member’s ability to get full custody.

Divorce proceedings are generally governed by state law, however, in the case of a Military Divorce, federal laws such as the Servicemember Civil Relief Act and the Uniformed Services Former Spouse Protection Act guide the distribution of marital assets.

For example, generally, after a divorce is final the former spouse loses commissary privileges and the ability to be insured under TRICARE. However, under certain circumstances, a former spouse may continue to be eligible for these benefits.

Other questions that arise in a Military Divorce pertain to the retired pay. For example what happens to the retired pay when the service member receives disability pay; or, what happens when the service member after retirement enters the civil service, also called double dipping? Another important questions that often arises in military divorces is how the Survivor Benefits Plan (SBP) should be handled.

Military Divorces are unique in so far that they deal with aspects that are not addressed in a typical Virginia Divorce. Because of this, it is generally better to retain an attorney who is familiar with handling military divorces.

As a Gold Star Widow I have dealt with DFAS many times regarding benefits and as a volunteer attorney at the Williamsburg Legal Aid office I have assisted many clients with their military divorce.

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Lobbying for Military Families

Virginia provides a Real Estate Tax Exemption for 100% Disabled Veterans and their Spouses. Requirements to qualify for the tax exemption are as follows:

  1. The Veteran must have been alive on January 1, 2011; and
  2. The disability is/was 100% service connected, total, and permanent.

Virginia also provides such a tax exemption to Spouses of Service Members who were killed in action on or after January 1, 2011.

This law excludes a similar situated group of people, Spouses of Service Members who have honorably served this Country and died due to a service connected illness. Any Service Member who died of a service connected illness surely is totally and permanently disabled.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws. U.S. Const. amend. XIV, § 1.

Thus, based on the Equal Protection Clause, similar situated people are required to be treated equally. For example in the landmark case where the United States Supreme Court held that regardless what race you belong to, you have the right to be educated by the same teachers, with the same books, and in the same buildings and same class rooms. Students cannot be “separate, but equal.” Brown v. Board of Education, 347 U.S. 483 (1954).

The United States Code, specifically, 42 USC §1983, provides a cause of action to individuals who have been deprived of their constitutional rights, privileges, and immunities.

Rather than pursuing legal action I decided to lobby our legislators to change the law that discriminates against Spouses of Service Members who died due to a service connected illness.

I started my efforts January 6, 2017 by contacting my Senator, the honorable Tommy Norment (R). I provided his office with the laws in question. After several phone calls and emails, I was advised by his legislative assistant that Senator Norment is not familiar with military issues and he does not want to get involved. Quite surprising considering that the Hampton Roads area, including Senator Norment’s voting district, is home to all military services, including the Air Force, Army, Navy, and Coast Guard; thus, has a huge military population. I was referred to Senator Stuart. Senator Stuart represents the Northern Neck, Middle Peninsula, northern Piedmont, and parts of Fredericksburg; thus, I am not one of his constituents.

In 2019 I revived my efforts and had a personal meeting with Delegate Mike Mullin (D). I provided him with all the applicable law and we had a productive discussion about the issue. I continue to stay in contact with Delegate Mullin’s legislative assistant. I hope that eventually a bill will result from these efforts and that Delegate Mullin agrees to carry this bill.

Updates to come.

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A second Equal Protection issue exists in the health care insurance field. Based on the Affordable Care Act (ACA), young adults, regardless of whether they are enrolled in school, regardless of whether they are counted as their parents’ tax dependent, and regardless of whether they are married may remain on their parents’ health plan until age 26.

Children who are insured through a military service member’s TRICARE coverage do not have that option. Once a child reaches the age of 23 TRICARE insurance ends for them, regardless whether they are still in college or not. The child or the child’s parents then have the option to purchase coverage called TRICARE Young Adult at a cost of $358 per month. While this, compare to premiums on the open market, is one of the more affordable premiums, most military families’ budget does not have an extra $4,296 a year to spend.

Military children are similarly situated as all other children in regards to education and health care needs. However, while other children based on the Affordable Care Act may remain insured under their parents’ insurance for an additional 3 years, military children have to pay $12,888 over these 3 years. Considering the high cost of college education, allowing TRICARE a waiver to the Affordable Care Act mandate is a huge financial hardship for military families.

This issue concerns federal law. I have contacted the honorable Senator Kaine. However, the response I received did not address my issue. His response focused on the military budget rather than to address the discriminatory application of the Affordable Care Act to military children.

I will continue my efforts because justice should be equal and impartial.

In Thomas Jefferson’s words:

“The most sacred of the duties of a government, to do equal and impartial justice to all its citizens.” [ca. 6 April 1816]

Extract from Thomas Jefferson’s Note for Destutt de Tracy’s Treatise on Political Economy.