West Virginia Military Divorce Attorneys

Getting a divorce in West Virginia can be an emotionally taxing process even under the best of circumstances. If one of the spouses happens to be a service member, the process can become even more complicated.

At Pence Law Firm PLLC, we have represented numerous service members and their spouses in divorce cases, and we are aware of the unique issues that couples might face in military divorces. We will advocate for your best interests and take all available legal steps to achieve the most positive outcome possible.

Military Divorces Can be More Complex Than Civilian Divorces

Protection Against Default Judgments

One of the most significant protections afforded to active service members in divorce proceedings is the safeguard against default judgments, outlined within the Service Members Civil Relief Act (SCRA).

In a typical civilian divorce, if the respondent (the spouse who did not file for divorce) fails to respond to the divorce summons within a specified timeframe, often 20 days, the plaintiff (the spouse who initiated the divorce) can request a default judgment from the court. This means the court can grant the divorce and often the terms requested by the plaintiff without the respondent’s input.

However, the SCRA fundamentally alters this dynamic for active service members. The rationale behind this protection is rooted in the practical realities of military service.

An active service member might be deployed overseas, stationed in a remote location, or engaged in training exercises that make it difficult, if not impossible, to receive a summons in a timely manner or respond to it within the standard civilian timeframe. Their military duties often take precedence and can severely limit their ability to engage with civil legal proceedings.

To address this, the SCRA mandates specific procedures for plaintiffs in military divorce cases. When filing for divorce against an active service member, the plaintiff is legally required to submit an affidavit to the court.

This affidavit must explicitly state whether their spouse is currently in the military and, if so, whether they are on active duty. This declaration triggers a series of protective measures. The court is then obligated to appoint an attorney to represent the service member. This appointed counsel’s role is to locate the service member and inform them of the ongoing divorce proceedings.

If the service member cannot be reached or is unable to appear, the court is legally required to “stay” or postpone the divorce proceedings for a minimum of 90 days.

This mandatory stay provides a critical window of time, allowing the service member to become aware of the divorce, seek legal counsel, and prepare a response without being penalized for their military commitments. This provision ensures that active service members are not unfairly disadvantaged due to their service to the country.

The importance of adhering to these SCRA provisions cannot be overstated. If a default judgment is mistakenly or improperly issued against an active service member without due consideration for these legal protections, the consequences can be severe for the plaintiff.

The SCRA allows the court to “vacate” or set aside such a judgment. If a judgment is vacated, it effectively nullifies the previous ruling, sending the entire case back to its initial stages. This means the plaintiff would have to re-file their petition and restart the entire divorce process, incurring additional time, legal fees, and emotional strain. This provision serves as a strong incentive for plaintiffs and their legal counsel to meticulously follow the SCRA guidelines.

The Right to Stay Divorce Proceedings

Beyond the initial mandatory 90-day stay, the SCRA further empowers active service members with the right to apply for additional stays on divorce proceedings. This provision acknowledges that a 90-day period may not always be sufficient, especially for service members on extended deployments, undergoing specialized training, or facing other demanding operational requirements.

To avail themselves of this right, the service member must formally file an application with the court. This application is not a mere request; it must be accompanied by a detailed explanation of why they cannot appear in court and the specific duration for which they require the proceedings to be stayed.

Crucially, the application must also include a note or letter from the service member’s commanding officer. This note serves as official corroboration, explaining the military reasons that prevent the service member from participating in the legal proceedings. The commander’s statement provides the court with the necessary context and verification of the service member’s unavailability due to military duties.

This process ensures that requests for extended stays are legitimate and directly tied to the demands of military service, preventing abuse of the protection. If the service member is able to appear in court, even if their schedule is highly constrained, their lawyer can proactively file a request with the court.

This request seeks to time the divorce proceedings to align with the service member’s availability, such as during periods of leave or between deployments. This flexibility aims to accommodate the unique logistical challenges faced by military personnel and allows them to actively participate in their divorce proceedings when feasible, rather than being entirely excluded.

Division of Pension in a West Virginia Military Divorce

The division of military pensions is a frequently contentious and complex aspect of military divorces. In West Virginia, as in many states, military pension is generally considered marital property. This means that a service member’s spouse can be entitled to a share of that pension, depending on various factors and the specific circumstances of the marriage and military service.

A key consideration in the division of military pensions is the “10/10 rule.” If the service member served in the military for a period of at least 10 years while they were married, their former spouse can receive their share of the military pension directly from the Defense Finance and Accounting Service (DFAS).

DFAS is the agency responsible for managing financial operations for the Department of Defense, including military pay and pensions. Direct payment from DFAS provides a streamlined and reliable method for the former spouse to receive their allocated portion of the pension.

It is important to note that even if the 10/10 criterion (10 years of service coinciding with 10 years of marriage) is not met, the service member’s spouse can still be awarded a share of the military pension.

In such cases, the court retains the authority to deem a share of the pension as fair and equitable property distribution, even if DFAS cannot directly disburse it. The significant difference here is that if the 10/10 rule is not met, the former spouse’s share of the pension will be paid directly by the service member, rather than through DFAS. This places the burden of payment and enforcement on the individual service member.

Beyond the pension itself, some military divorces involve the division of other valuable benefits. If the service member was married for a period of 20 years or more, and if they served in the military for at least 15 years during that specific marriage, their former spouse may be legally entitled to receive a range of highly significant benefits after the divorce.

These can include full medical benefits (TRICARE), exchange privileges (access to military commissaries for discounted groceries and goods), and commissary benefits. These benefits represent substantial financial value and contribute significantly to the quality of life for the former spouse, making them a critical consideration in long-term military marriages.

Child Custody and Visitation in a West Virginia Military Divorce

Child custody and visitation arrangements become notably more intricate when one or both parents are active service members. The very nature of military life—characterized by deployments, frequent transfers, demanding training schedules, and unpredictable assignments—can profoundly impact a parent’s ability to consistently fulfill standard custody and visitation agreements.

An active service member parent might find themselves unable to spend as much physical time with their child as they are legally entitled to under typical civilian custody orders. Extended deployments can mean months or even years away from home, making regular visitation impossible.

Even when not deployed, the demands of active duty, such as long work hours, training exercises, or temporary duty assignments, can limit a parent’s ability to remain actively involved in their child’s daily life, participate in school activities, or attend important events.

Navigating these challenges requires a nuanced and flexible approach from all parties involved. Experienced attorneys in military divorce cases understand these unique factors.

They will work diligently with the service member’s spouse’s lawyer to develop a child custody and visitation agreement that prioritizes the child’s best interests while simultaneously protecting the fundamental rights of the service member as a parent.

This often involves crafting creative solutions that account for military schedules. For instance, agreements might include provisions for increased visitation during periods of leave, virtual visitation options (video calls, online communication) during deployments, or the designation of a trusted family member to exercise visitation rights on behalf of the service member during their absence.

Courts often consider the service member’s commitment to their duty, and the goal is to create a parenting plan that fosters a strong parent-child relationship despite the transient nature of military life. The aim is always to achieve a balance that provides stability for the child while acknowledging and accommodating the unique challenges and sacrifices inherent in military service.

Highly Skilled Military Divorce Lawyers in West Virginia are Ready to Represent You

No divorce is easy. A military divorce, in particular, can be more complex than a civilian marriage dissolution due to the various state and federal laws that are applicable to these cases. This is why you need a dedicated military divorce lawyer to handle your case.

At Pence Law Firm PLLC, we have extensive knowledge of the laws governing military divorce and can provide you with effective, results-oriented legal representation that is tailored to your specific needs. We know how a spouse’s status as a service member can complicate property division, alimony, child support, and other issues and we know how to resolve them hopefully without resorting to a lengthy legal battle.

Call us today at 304-345-7250 or get in touch with us online to talk to one of our seasoned West Virginia military divorce attorneys.