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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 32789
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am a deployed servicemember; my spouse and son are back in

Customer Question

I am a deployed servicemember; my spouse and son are back in Virginia. I am now seeking a divorce. My spouse committed adultery during my deployment by joining a swingers' club; I have copies of the explicit text messages that included photos /videos of my spouse engaging in sex acts with others. To minimize costs, I want to use mediation, but with the evidence of adultery as leverage in negotiations to ensure my spouse doesn't obtain any part of my military pension. I am not totally heartless; I regularly contributed the maximum to my spouse's Roth IRA during 9 out of the 11 years of our marriage. My spouse also has a graduate degree and eligibility for pensions from previous and current teaching jobs. Please let me know if you think this is a viable strategy.
JA: OK. The Military Lawyer will need to help you with this. Anything else I can tell the Military Lawyer before I connect you two?
Customer: The other question is whether the state a military spouse declares under the military spouse residency relief act (MSRRA) can be considered the state of residency for filing for divorce. I am a Texas resident stationed in Virginia, my spouse has used the MSRRA to maintain Texas residency. The issue here is whether for purposes of property division, if Texas holds any advantages over Virginia, especially when marital misconduct is involved.
JA: I'm sending you to a secure page on JustAnswer so you can place the $5 fully refundable deposit now. While you're filling out that form, I'll tell the Military Lawyer about your situation and connect you two.
Submitted: 6 months ago.
Category: Military Law
Expert:  P. Simmons replied 6 months ago.

Hello! My name is ***** ***** I am a licensed attorney with more than 18 years of experience. I am here to assist you with your questions. I am here to help

Also, if you would like to chat on the phone, let me know and I can make that happen.

can you tell me a bit more about your spouse's career. How long have they been in the military? Officer or enlisted? Does their command know about this?

Customer: replied 6 months ago.
My apologies for not explaining things well enough.
Actually, I am the servicemember ( and faithful spouse) with 21 years in, and I am currently a lieutenant colonel. I have been married now 11 years, 4 months. My spouse ( the one who is back home, cavorting with swingers' clubs) is a teacher. My spouse taught for six years before our marriage, and has taught for five years during our marriage. My command does know about my situation, but from a prospect of keeping track of my well-being while deployed.
Expert:  P. Simmons replied 6 months ago.

Ah...thanks. That changes the dynamics markedly.

and begs the question...will your spouse "consent" to the divorce? or are you going to "fight this out"?

Customer: replied 6 months ago.
The intent is to use the evidence of the adultery as leverage in negotiations to ensure that I don't give up any part of my pension to my adulterous spouse. In short, the choice is between no fault divorce, on my financial terms; or a fault divorce on grounds of adultery, with an unsure outcome.
My other question was whether a spouse's residence as declared under the MSRRA can be used as residence for filing for divorce. Although my permanent duty station is in Virginia ( my family is there while I am deployed), I am a Texas resident, and my spouse has declared texas residency under the MSRRA. If so, would there be any advantages to filing in Texas with respect to property division.
Expert:  P. Simmons replied 6 months ago.


I have some thoughts and will type them up...

Expert:  P. Simmons replied 6 months ago.

Thank you for your patience

First and foremost BOTH Texas and VA allow for “fault” divorce based on adultery. So you can obtain this “leverage” in either jurisdiction. And leverage it is. Lets back up…

a divorce can either be contested or not contested.

Uncontested; Now the fastest, (and by far the least expensive) way to get a divorce is if you can agree on the terms. If you can agree on "who gets what" there is not a need for attorneys...this will cut the costs to a very small amount (court fees)

Contested; if you can not agree, this is a contested divorce. To proceed you need an attorney or need to act as your own attorney (very bad idea). Here the parties present evidence to the court on "who gets what" and the court decides. This takes longer and involves attorney fees for both sides.

SO, if you can agree with your "soon to be ex" on who gets what, great! If not, you need an attorney. As will they…and costs can quickly escalate (lawyers fees measured in tens of thousands of dollars not uncommon in a contested divorce).

FEW divorces go all the way contested…some will settle rights away…some after paying their lawyers a little or a lot of money. The smart folks will settle up front…

So in your case, you have a path to contest this and obtain a “fault” divorce which would, likely, reduce significantly her share of the community (marital) property

What is this leverage worth?

Well…where are you now? If you are close on your positions (what she wants vs what you want) it may be you can use the leverage to get her to move closer or adopt your position.

And if you are far apart…well…the same concept applies…it may be you can influence her to move to where you expect the property settlement to be.

At the end of the day IF this contest BOTH of you are paying the lawyers

I tell folks that the best deal is one where neither side is happy. So bend to avoid paying the money to lawyers (since that money is lost)

But USE that leverage to press your point. IF you had to contest her adultery will give a basis to significantly reduce her share of your pension.

Now…what venue (TX or VA)? Honestly TX is easier…if only because you do not have the requirement that you live separate and apart one year (or 6 months with no kids). And perhaps more important IF she is a TX resident and you are as well? Really that is the proper jurisdiction. The only issue is kids…I do see a mention of kids…IF you have kids? Then VA will be the place to file…since they have jurisdiction over the kids. NO kids? You want to file in TX.

They have a different scheme of division of property (equitable distribution vs community property) but frankly, the result would likely be exactly the same

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

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