Virginia Court Remands Divorce Proceedings to Lower Court Over Question of Military Pay

In a recent opinion from a Virginia federal court, a husband argued that he was forced to give his ex-wife too much of his military pay in the wake of their divorce. On appeal, the court considered his argument and found that the couple’s divorce agreement clearly violated federal law. Because of this violation, the court sent the case down to a lower court to resolve the husband’s issue.

Facts of the Case

According to the opinion, the husband and wife initially negotiated an agreement at the time of their divorce that set up how much money each party would receive. One central point of contention in the agreement was the division of the husband’s military pay. Ultimately, the parties agreed that the wife would receive a large percentage of the husband’s disposable military retired pay. A year later, however, the husband argued before a court that some aspects of their agreement violated federal law and that he wanted a court to review the order. The wife rejected this argument, stating that under Virginia law, the husband only had 21 days to challenge the order, and because that time had already passed, his challenge was no longer valid.

In response to these arguments, a court decided that it would not consider the husband’s appeal because the 21-day deadline had, in fact, already passed. The husband appealed this decision, and a higher court decided it would consider the issues the husband raised.

The Decision

In its decision, the court said that it was true that the husband technically missed his chance to challenge the agreement. He clearly had 21 days to argue that the agreement was invalid, and because he waited a year to make such arguments, he lost his window of opportunity. Even given this fact, though, the court acknowledged that it could modify an order after 21 days if there was a clear clerical error in the original order. No clerical error existed, though, said the court, and thus this exception did not apply.

The court also stated that the 21-day rule can be ignored if a divorce agreement violates federal law. Because of this exception, the court had to then analyze whether or not the agreement was a violation of federal law. Under U.S. law, a state court cannot order that a former spouse receives beyond 50% of the veteran’s disposable retirement pay. Because the couple’s divorce agreement violated this law, the husband’s argument fits into the exception for the 21-day window. Thus, the court agreed that it was acceptable for the husband to argue that the divorce decree was invalid, remanding the husband’s appeal to a lower court so that it could decide how much money each party should receive moving forward.

Are You a Party to a Divorce in the Commonwealth of Virginia?

If you are navigating a divorce in Virginia, it is in your best interest to make sure you have experts working on your side. At Robinson Law, we will listen to your side of the story, and we will work hard to craft a defense strategy that is personalized for you. For a free consultation to talk through your options, give us a call at 888-259-9787.


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