The Peninsula has one of the highest concentrations of veterans anywhere in the country, so the Newport News Circuit Court handles retiree divorce files that most courthouses see once a decade. If you are a veteran heading into one, you have probably already been told two things at the VFW post or in the barbershop on Warwick Boulevard. The first is that your VA disability is untouchable. The second is that your ex is going to get half of your retirement.
The first is close to right. The second is usually wrong, and the difference between the two can run into six figures over a lifetime. What actually happens depends on which pot the money comes out of, and the line between those pots can move years after your final decree is entered.
Virginia Divides the Property. Federal Law Decides What Counts as Property.
Virginia is an equitable distribution state under Virginia Code 20-107.3, not a community property state. A judge classifies every asset as marital, separate, or part of each, then divides the marital portion using eleven statutory factors. Nothing about that process starts at fifty-fifty. Our page on how assets are divided in a Virginia divorce walks through the classification step in more detail.
Military retired pay sits on top of that framework. The Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. 1408, lets state courts treat disposable military retired pay as marital property. It permits division. It does not require it, and it does not tell a Virginia judge how much to award. Virginia adds its own ceiling: under 20-107.3(G)(1), a court cannot order more than fifty percent of the marital share of a pension to the other spouse.
So the analysis runs in two steps. Federal law decides what is even eligible to be divided. Virginia law decides how much of it your spouse actually gets.
Your VA Disability Compensation Is Not Marital Property
VA disability compensation is protected by Title 38, and 38 U.S.C. 5301 shields it from most claims. In Mansell v. Mansell, decided in 1989, the Supreme Court held that state courts have authority to divide disposable retired pay but not total retired pay, and that retired pay waived to receive VA compensation falls outside what can be divided.
A Virginia judge cannot award your spouse a percentage of your VA check. A judge cannot list it on an equitable distribution schedule as a marital asset. Our companion post on whether a spouse can get your VA disability in a divorce covers the basic rule. This article covers the two places where that rule stops being simple.
The VA Waiver Is Where Most Veteran Divorces Go Sideways
If you draw both military retired pay and VA compensation, you cannot collect both in full. You waive retired pay dollar for dollar to receive the tax-free VA payment. That waiver is almost always the right financial move for you. It also shrinks the pool your former spouse is dividing, because disposable retired pay is defined to exclude the waived amount.
The Supreme Court closed the obvious workaround in Howell v. Howell in 2017. A state court cannot order a veteran to reimburse or indemnify a former spouse for the reduction caused by a disability waiver. Calling it a reimbursement, an offset, or a make-whole payment does not change the answer. Those orders are preempted.
This is not a loophole veterans are exploiting. It is the structure Congress built, and it means the number on page one of a settlement agreement is not always the number that shows up in a bank account fifteen years later.
What This Looks Like in Practice
Picture a senior enlisted retiree from Fort Eustis. He served twenty-four years and married in his sixth year, and the parties separated shortly before he retired. Eighteen of his twenty-four years of creditable service overlapped the marriage, which makes the marital share seventy-five percent. Virginia caps his wife’s award at half of that, so the most a judge can award her is 37.5 percent of the retired pay covered by the order.
On gross retired pay of $4,000 a month, that looks like $1,500. Then his VA rating comes through at forty percent, and he waives roughly $800 of retired pay to take the tax-free compensation. Disposable retired pay falls to about $3,200, and her 37.5 percent share falls to about $1,200. Roughly $300 a month has left the marital estate permanently, and no Virginia judge can order him to replace it.
Because his rating is under fifty percent, Concurrent Retirement and Disability Pay does not restore the waived amount. A rating of fifty percent or higher with twenty years of service would have produced a very different result.
This example is illustrative and does not describe a specific client matter. Prior results do not guarantee a similar outcome.
What Changed in 2026 for Medically Retired Veterans
For years, veterans who were medically retired under Chapter 61 of Title 10 were told their pay was disability retired pay and therefore off limits. Former spouses received a form rejection letter from the Defense Finance and Accounting Service and that was the end of the conversation.
That answer was wrong. In 2022 the Department of Defense Claims Appeals Board held that Concurrent Retirement and Disability Pay is divisible because it restores longevity retired pay rather than paying disability. DFAS updated its regulations in February 2026 to reflect that holding. In communications this spring, DFAS acknowledged that its retired pay system is not programmed to pay former spouses from a member’s Chapter 61 retired disability pay, and that affected cases require manual processing.
The practical effect is that some Chapter 61 cases previously treated as closed may now be worth revisiting, and that timelines for those cases are unpredictable while DFAS works through the change. If you are a Chapter 61 retiree in Hampton Roads, or the former spouse of one, this is a live issue rather than settled history.
One distinction still holds. Combat-Related Special Compensation is not divisible as property. A veteran who qualifies for both CRSC and CRDP has to choose one, and that election can change what a former spouse receives.
Virginia Lets You Agree to Something a Judge Cannot Order
This is the piece most articles on this topic leave out, and it is the piece that decides Virginia cases.
In Yourko v. Yourko, decided in 2023, the Supreme Court of Virginia read Howell narrowly. Howell stops a court from ordering indemnification. It does not stop two spouses from voluntarily agreeing to it in a property settlement agreement, and Virginia courts can enforce an agreement that includes one. The U.S. Supreme Court declined to review that decision in 2024.
The Court of Appeals of Virginia reinforced the limits in a March 2026 memorandum opinion. A circuit court had entered a military retired pay division order containing an indemnification clause that did not appear in the parties’ agreement, and had also swapped the agreement’s term “gross pay” for “disposable retired pay.” The appellate court reversed on both points. A court cannot rewrite a property settlement agreement to add protection the parties never negotiated. That opinion is unpublished and not binding precedent, but it is a clear signal about how these disputes are being viewed.
Two practical takeaways follow from that pair of cases. If you are the spouse of a veteran, indemnification language has to be negotiated into the agreement up front, because no judge can add it later. If you are the veteran, the exact wording matters, and “gross pay” and “disposable retired pay” are not interchangeable.
The Ten-Year Rule Does Not Decide Whether Your Spouse Gets a Share
The most persistent myth in military divorce is that a marriage has to last ten years before a pension can be divided. It does not. The ten-year overlap in 10 U.S.C. 1408(d)(2) controls one thing only: whether DFAS will send your former spouse a separate check instead of leaving collection between the two of you. Entitlement comes from Virginia property law. We address this directly on our page about whether former spouses are automatically entitled to a share of retired pay.
A four-year marriage that overlapped four years of service still produced four years of marital retirement credit, and a Virginia court can divide it. The former spouse simply has to collect from the retiree rather than from the government.
If You Divorce Before You Retire, the Frozen Benefit Rule Applies
For divorces entered on or after December 23, 2016, where the member had not yet retired, federal law freezes the pay figure used for division. Your former spouse’s share is calculated on your pay grade, your years of creditable service, and your high-three base at the time of the divorce, adjusted only for cost of living increases after that.
If you divorce as an E-6 with fourteen years and retire as an E-8 with twenty-two, your former spouse shares in the E-6 number, not the E-8 number. The rule does not apply if you were already retired when the divorce was entered. It is one of the few places in this area of law where the timing of a filing genuinely changes the math.
A Virginia Court Needs Separate Permission to Touch Your Pension
Under Virginia Code 20-97, a service member stationed in Virginia for at least six months is presumed to be a Virginia resident and domiciliary for divorce purposes, and a 2026 amendment extended that protection for members returning from overseas assignments. That gets you into a Virginia courtroom. Our page on filing for divorce while in the military in Virginia covers the residency question in more depth.
Dividing retired pay is a separate question with a separate test. Under 10 U.S.C. 1408(c)(4), a court may divide military retired pay only if it has jurisdiction over the member by residence other than because of a military assignment, by domicile, or by the member’s consent. A sailor stationed at Naval Station Norfolk who has kept Texas domicile the entire time may be divorced in Virginia while still contesting whether a Virginia court can reach the pension. Filing a counterclaim or making a general appearance usually supplies the consent.
If your domicile is somewhere other than Virginia, raise it early. It is one of the few defenses in this area that can be waived by accident.
The TSP and the Survivor Benefit Plan Have Their Own Rules and Their Own Deadlines
Your Thrift Savings Plan is divisible marital property to the extent it was funded during the marriage, and it is divided through a retirement benefits court order that is separate from your pension order. One document does not accomplish both. Agency matching contributions under the Blended Retirement System are part of the balance and are treated the same way.
The Survivor Benefit Plan is the deadline that ends more cases than anything else on this list. SBP pays an eligible beneficiary fifty-five percent of the elected base amount for life after the retiree dies. Divorce automatically terminates a current spouse’s coverage. It does not convert to former spouse coverage on its own, and a line in your decree does not make it happen either.
The retiree files DD Form 2656-1. The former spouse can protect herself by filing a deemed election on DD Form 2656-10. Either filing has to reach DFAS within one year of the order requiring the coverage. Miss that window and the coverage is gone, along with the security that made the pension division worth agreeing to in the first place.
VA Disability Still Counts as Income for Support
Protection from property division is not protection from support. Virginia Code 20-108.2(C) defines gross income to include veterans’ benefits by name, so your VA compensation goes on line one of the child support guidelines worksheet. Because the payment is tax-free, the full amount is counted. The same figure informs spousal support under Virginia Code 20-107.1.
The Supreme Court settled the principle in Rose v. Rose in 1987, holding that a state court could enforce a child support order against a veteran whose only income was VA compensation. Collection is a narrower question than calculation. Direct garnishment reaches only the portion of retired pay waived for VA compensation, and apportionment is handled administratively through the VA rather than by the circuit court.
Where Your Case Gets Heard on the Peninsula
Divorce, equitable distribution, and military retired pay division orders are handled in circuit court. For Newport News that is the Newport News Circuit Court at 2500 Washington Avenue. Custody, visitation, and support matters filed before a divorce case exists go to the Newport News Juvenile and Domestic Relations District Court at 2501 Huntington Avenue, and appeals from that court are heard de novo in circuit court. Our Newport News office page has directions and contact details.
The surrounding installations shape the caseload here. Joint Base Langley-Eustis, Naval Weapons Station Yorktown, the Coast Guard Training Center at Yorktown, Naval Station Norfolk, and NAS Oceana all feed retirees and separating service members into the same handful of courthouses. Judges on the Peninsula see these issues regularly, which helps, but it does not remove the drafting burden from the parties.
What to Bring to a First Meeting
Cases in this area are won or lost on documents, not arguments. Bring what you have and do not worry about what you are missing.
- Your DD-214 and, for Guard or Reserve service, your retirement point statement
- Your most recent Retiree Account Statement or Leave and Earnings Statement
- Your VA award letter showing your rating and its effective date
- Your marriage certificate and the date you and your spouse last separated
- Your most recent TSP statement and any existing SBP election paperwork
- Any prior decree, property settlement agreement, or pension division order
Questions Veterans Ask Us Most Often
Can my ex-wife take half of my VA disability in a Virginia divorce?
No. VA disability compensation is not marital property and a Virginia court cannot award any share of it to your spouse in equitable distribution. Federal law under 38 U.S.C. 5301 and the Supreme Court’s decision in Mansell v. Mansell put it outside the reach of state property division. That protection covers division as property only. The same money can still be counted as income when a judge calculates child support under Virginia Code 20-108.2 or spousal support under 20-107.1.
I receive VA disability but I never served twenty years, so I have no military retirement. Is there anything for my spouse to divide?
Not out of your VA compensation. If you have no military retired pay, there is no pension for a Virginia court to apportion, and your disability compensation stays yours. Everything else you built during the marriage is still on the table, including a Thrift Savings Plan balance, civilian retirement accounts, the house, and vehicles. Your VA compensation will also be counted as income if child support or spousal support is at issue.
My divorce was final years ago and my retired pay dropped when my VA rating went up. Can my former spouse make me cover the difference?
Usually not, but the answer turns on what your agreement says. In Howell v. Howell the Supreme Court held that a state court cannot order a veteran to indemnify a former spouse for retired pay waived to receive VA compensation. Virginia added an important wrinkle in Yourko v. Yourko, where the Supreme Court of Virginia held that spouses can voluntarily agree to an indemnification provision in a property settlement agreement, and that courts can enforce that agreement. Pull your property settlement agreement and your pension division order and read them side by side before you assume you are protected.
We were only married for six years while I was on active duty. Does my spouse still get part of my pension?
Possibly. The ten year overlap you have heard about controls only whether the Defense Finance and Accounting Service will send your former spouse a separate check. It has nothing to do with whether a Virginia court can divide the pension at all. Six years of service earned during the marriage is six years of marital property under Virginia Code 20-107.3, and a judge can award your spouse up to half of that marital share.
I was medically retired under Chapter 61, and my former spouse was told years ago that there was nothing to divide. Has that changed?
It may have. A Department of Defense Claims Appeals Board decision in 2022 held that Concurrent Retirement and Disability Pay is divisible because it restores longevity retired pay rather than paying disability, and DFAS updated its regulations in February 2026 to match. DFAS has said publicly that its payment systems are not yet programmed for these divisions and that some cases require manual processing. If you are a Chapter 61 retiree, or the former spouse of one, this is worth a fresh look with an attorney who handles military pension division.
Talk to Someone Who Handles These Cases
If you are dealing with a divorce involving VA disability or military retired pay, the attorneys at Holcomb Law are ready to help. We handle military divorce cases across Newport News, Hampton, Virginia Beach, Yorktown, and Lynchburg, and we understand how much is at stake for you and your family. Call (757) 913-5204 or contact us online at https://www.attorneyholcomb.com/contact/ to schedule a consultation.
Sources and further reading: Virginia Legislative Information System for the full text of the statutes cited above, Virginia’s Judicial System for court locations and forms, and the Virginia State Bar for attorney licensing information.
Author: Wayne E. Holcomb, Esq. | Holcomb Law, P.C. | Licensed in Virginia since 2008
This content is for informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship.
