Divorcing a Military Spouse

Military spouse

Divorcing a military spouse brings with it unique challenges that have to be taken into consideration in order to navigate the process with as few problems as possible.

The first challenge can be when to file the divorce petition. If your spouse is on active duty, then under the Soldiers and Sailors Civil Relief Act you cannot file for divorce while the spouse is on active duty and for sixty days after the active duty ends. The limitation can be waived if the military member agrees to waive it and consent to the divorce.

Note that in some cases, the military spouse may be the one filing for divorce, and may be stationed in a state where the divorce laws differ significantly in terms of property division, child custody, child and spousal support and other such issues. It may also be inconvenient for a person to respond to a divorce that is not in filed in the state where he or she is living. These are some considerations to keep in mind as a spouse decides whether to file for divorce first.

The residency requirements for filing for a divorce from a military member are the same as for other spouses in that before filing for divorce, the petitioner must have resided in Illinois for ninety days before filing. If the petitioner is also in the military, he can meet this residency requirement if he was stationed in Illinois for ninety days before filing for the divorce.

Under the Uniformed Services Former Spouse Protection Act, Illinois courts can divide military pensions in much the same way as other pensions. However, to receive payment directly from the government office responsible for paying out military pension payments, the former spouse of a military member has to have been married to the military spouse for ten years or more. In addition, the former spouse cannot collect his or her portion of the pension if the military spouse is not yet retired.

Just because one parent is in the military does not mean that a court will automatically award primary parental responsibility to the non-military parent. In resolving the issue of which parent gets primary parental responsibility, the court will always consider the best interest of the child. If the military parent is often deployed or cannot be in the state for the majority of the time, the parents should consider coming to an agreement regarding the children that provides for the child’s stability without damaging the child’s relationship with each parent.

Contact Us for Legal Assistance

If you want to file for divorce from a spouse who is in currently serving in a branch of the military, there are many issues to consider before filing the paperwork. For more information, contact the passionate Naperville divorce attorneys at the Roscich & Martel Law Firm, LLC for more information on how our office can assist you.


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