Tag Archives: military divorce

What Laws and Legal Issues Are Involved in a Military 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.

Sources:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K452

 

Understanding Divorce in the Military

Illinois Divorce LawyerThere is no doubt military life is very different than the civilian world. Between training schedules, deployments, and frequent relocations, being in the military is not for everyone. On top of all of the pressures our servicemembers and their families face, the military community also deals with a high divorce rate. Members of the military often change over time due to the constant demands, and family members also evolve with the situation. It is not uncommon that after a few years, a couple realizes neither of them is the same person and they are no longer compatible.

If this situation resonates with you, first, know that you are not alone. Here is a look at the differences you face in a military divorce.

The Uniformed Services Former Spouses’ Protection Act

This act urges the military to accept Illinois state statutes for issues such as child support, spousal maintenance, and military retirement plans. Therefore, Illinois has the right to award retirement pay to a spouse or a soon-to-be former spouse. Although it is not guaranteed, the retirement pay can be distributed as either a fixed dollar amount or a percentage of disposable retired pay. To qualify, spouses must meet the qualifications of the “10/10 Rule,” which states the marriage must have lasted at least 10 years, and the service member must have served at least 10 years of the marriage performing eligible military duties.

The Servicemembers Civil Relief Act

This replaced the Soldiers and Sailors Civil Relief Act of 1940. The changes extended protection to active duty members of all branches of the military, reservists, and any members of the National Guard who are called up to action by either the President or Secretary of Defense for at least 30 consecutive days. The act covers a broad spectrum, including but not limited to court orders, repossessions, and eviction. The two most important to note are the protections related to family law, which include the stay of civil proceedings and relief from civil judgments.

Ask a Wheaton, IL Divorce Attorney

Military life comes with significant pressure and the military experience does not make the divorce process any more comfortable. Divorce can become complicated and extended based on your unique circumstances. If you or your spouse is an active duty service member and you are considering divorce, it is essential to contact a DuPage County military divorce attorney today. At Andrew Cores Family Law Group, we sympathize with your situation. We thank you for your dedication to our country and the sacrifices you make. Let us help you understand your rights and protections and guide you to the best decision for your family. Call us at 630-871-1002 to schedule a free and confidential consultation. We look forward to serving you.

Sources:

https://www.military.com/money/retirement/military-retirement/understanding-divorce-in-the-military.html

https://www.dfas.mil/garnishment/usfspa/legal.html

https://www.military.com/benefits/military-legal-matters/scra/servicemembers-civil-relief-act-overview.html

What Is the USFSPA?

USFSPA, Illinois military divorce attorneyMilitary members marry, divorce, and deal with family just like everyone else. However, the nature of military service means that the law must be adapted to serve their unique needs at times. The Uniformed Services Former Spouses’ Protection Act (USFSPA) is a good example of this adaptivity that can help keep military service members and their former spouses in good shape even after a divorce.

History of the Law

The USFSPA sets out regulations which must be followed by civilian courts in awarding military retirement pay as an asset in the division of a marital estate. It does not give a former spouse an automatic share in retirement pay; it merely grants the court the right to see such pay as an asset. The Act also allows civilian courts to enforce orders for child or spousal support against active or retired military service members.

Before its passage, there was essentially no statutory right to receive any amount of military or retired pay, exemplified by a high-profile case in 1981. In that case, the Supreme Court ruled that applying community property standards to military pay was precluded from happening by the language of the relevant statute and that to do so might undermine the impetus for many service members to enlist. In response to the court’s decision, the USFSPA was enacted, passing Congress with bipartisan support and being signed into law in 1982.

The 10/10 Rule

One important rule that often becomes relevant in many military divorces is the so-called 10/10 Rule, which governs how retirement pay is disbursed. The 10/10 Rule holds that in order for retirement pay to be classed as an asset by a civilian court and its disbursement enforced by the USFSPA, the service member must have been married for at least 10 years, during which time the member must have performed at least 10 years of service eligible to be counted toward retirement.

If both of these conditions are not satisfied, retirement pay cannot be divided in a way that is enforceable under the USFSPA. However, in most cases, this will not stop you from working out an agreement between you and your spouse to divide the retirement pay; it will simply not be enforceable under USFSPA if there are problems in the future. In a situation of that type, you would likely be forced to resolve your dispute through mediation or in a civilian court.

Seek Experienced Legal Help

Military members have busy, difficult lives, and divorce can get very complicated depending on timing, location, and other factors. Having an experienced Illinois military divorce lawyer on your side can help simplify the process. Contact a member of our team today and get the help you need. Call 630-871-1002 for a free consultation at the Andrew Cores Family Law Group.

 

Sources:

https://www.law.cornell.edu/uscode/text/10/1408

https://www.dfas.mil/garnishment/usfspa/legal.html