What Laws and Legal Issues Are Involved in a Military Divorce?

Posted on in Divorce

Wheaton military divorce attorneyIt is very common for a member of the Armed Forces to be away from their home and family for long periods of time. This can be hard on a marriage, whether one or both spouses are in the military. Even after his or her tour ends, a veteran can develop post-traumatic stress disorder (PTSD), which can have a large impact on his or her personal relationships. All these things can lead to a couple growing apart and eventually divorcing. A military divorce can involve a number of special considerations, since a member of the military is employed by the federal government, which can affect child support, retirement benefits, and more.

State and Federal Divorce Laws

Under Illinois law, a person can only file for divorce if he or she is a resident of the state. However, a person who is in the military and is not in the state or country due to military orders is generally still considered a resident of Illinois. For instance, if a soldier who normally resides in Illinois is sent to Italy on military orders, he or she can still file for divorce in Illinois.

The Illinois Marriage and Dissolution of Marriage Act requires at least one of the following:

  • One spouse resides in Illinois for 90 days.

  • One spouse is stationed in Illinois for 90 days.

Normally, when a spouse serves divorce papers to the other partner, that spouse has to respond within a specified amount of time. The Servicemembers Civil Relief Act (SCRA) provides certain rights to military service members who are on active duty in different types of court cases, including divorces. Under this Act:

  • A “stay” or postponement of a civil court proceeding is extended if the service member cannot attend because of duty; or

  • Certain protections on default judgments for failure to appear at trial are granted.

Child-Related Issues

In divorce cases where one or both parents are on active military duty, child custody and parenting time may be handled differently than in a civilian divorce. If the military parent is going to be stationed in another state or overseas, the court must consider this when determining the allocation of parental responsibilities (custody) and parenting time (visitation) schedules. Thinking about how to deal with these situations and planning ahead to make arrangements for the time children will spend with each parent can help make the transition to post-divorce life smoother, especially for the child.

In addition, certain rules provided by the military can affect temporary child support and spousal support. In many military families, the non-military spouse is a stay-at-home parent; therefore, the military spouse might be responsible for paying spousal maintenance after the divorce.

Retirement and Medical Benefits

It is important to note that federal law controls over state law. The Department of Defense has guidelines for military benefits, including retirement. These rules can differ from the standard Illinois rules for these matters. Under the Uniformed Services Former Spouses’ Protection Act, a former military spouse will only receive a portion of his or her former spouse’s retirement account if they were married for 10 years or longer while the military spouse was on active duty.

According to federal law, military spouses can keep their military medical benefits if the couple was married for a minimum of 20 years, and the service member performed at least 20 years of active military service during that time.

Contact a DuPage County Military Divorce Lawyer

Service to our country is honorable, but it can also put a strain on a marriage that may ultimately lead to a divorce. If you or your spouse are a member of the military, federal law can affect the proceedings. A knowledgeable Wheaton, IL divorce attorney can explain the legal aspects of your situation and help you understand the process, working to ensure that each partner receives a fair settlement. To schedule a free consultation, call 630-871-1002 today.




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