Unique Considerations in a Military Divorce

 Posted on October 10,2017 in Divorce

Divorce is extremely common, and sometimes, it can come at an inopportune time. Nowhere is this more apparent than in the case of military families, when essentially, there is no “good” time unless the person with a military career is essentially retired. To help military couples obtain a divorce in an amicable fashion without having to wait years, there are certain specific divorce laws that apply only to them.

Service and Timing Issues

The main issues in trying to obtain a divorce from an active duty military member are personal service and the possibility of default. A divorce can be filed in Illinois if one or both spouses either live in state permanently, or if one or both spouses are stationed in the state. However, in any contested divorce, the non-moving party must be served personally with a copy of the petition filed by their spouse. Otherwise the court, in theory, has no jurisdiction over them. In other words, without personal service, the military member would not have enough contact with the place where the court is for that court to have any power over him or her. If the divorce is not contested, personal service may be waived, but if it is contested, the rule is absolute. This means that the personal service requirement can make going forward with the divorce very difficult if the military member is overseas or in a war zone.

Another common issue is the timing track on which a normal divorce case usually progresses. Normally, a spouse has a certain amount of time to respond to a divorce petition—60 days in most cases. However, if one spouse is deployed, it may be beyond his or her ability to reply in time. To prevent default, Illinois courts have followed the provisions of 50 U.S.C. §521, known as the Servicemembers Civil Relief Act (SCRA), which permits the action to be postponed for the service member’s entire tour of duty, plus 60 days afterward. A military member may waive their rights under the SCRA, but unless they do so specifically, Illinois courts will usually put it into practice.

Property Division and Military Pensions

One important thing to be aware of is that unlike most pensions and benefits, military pensions and other benefits are not necessarily divisible in divorce. The Uniformed Services Former Spouse Protection Act (USFSPA) sets out specific rules for when a service member’s retirement and other benefits are available to a former spouse or may be divided in a divorce action. Generally speaking, unless a marriage has lasted a decade or more during the service member's active career, the former spouse is not entitled to any portion of the military member’s retirement.

In terms of child and/or spousal support, the guidelines are largely the same as they are for civilians, but military regulations mandate that no more than 60 percent of a service member’s salary may be used for this purpose. There is no comparable regulation on civilian pay—at least not directly.

The Right Attorney Can Help

Military families face enough hardship and struggle without the added confusion of court dates and deadlines. Contact an experienced Lombard family law attorney to discuss your options and to get the guidance you need. Call 630-426-0196 for a confidential consultation today.

Sources:

https://www.law.cornell.edu/wex/personal_jurisdiction

https://www.justice.gov/sites/default/files/crt/legacy/2011/03/23/scratext.pdf

http://www.military.com/benefits/military-legal-matters/uniformed-services-former-spouse-protection-overview.html