West Virginia Military Divorce Laws
A West Virginia military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection From West Virginia Divorce Proceedings
There are laws set up to protect active duty military members against being held in "default" from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local West Virginia court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a West Virginia court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
Residency and Filing Requirements
The typical military divorce filing requirements are as follows:
- You or your spouse must reside in West Virginia
Grounds for West Virginia Military Divorce
The grounds for a military divorce in West Virginia are the same as a civilian divorce.
Dividing the Property
Along with the normal West Virginia property division laws, the federal government has enacted the Uniformed Services Former Spousesí Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
Child Support and Spousal Support
In West Virginia, both child support and spousal support/alimony awards may not exceed 60% of a military memberís pay and allowances. The normal West Virginia child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.
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