Military Divorce in Illinois
- Grounds for military divorce in Illinois
- Residency requirements for military divorce in Illinois
- Filing, serving, and answering the petition for divorce
- How does Illinois military divorce work with children?
- What happens to military pension in Illinois divorce?
- Military vs. civilian divorce
The divorce process is never easy, but for military families, the additional legal intricacies can create even more layers of complexity.
Illinois state law regulates divorce in Illinois. However, military divorces are subject to several federal laws that supersede state laws. These can affect issues such as legal jurisdiction, the timeliness of the divorce process, division of marital property, child custody and support, and spousal military benefits.
Grounds for military divorce in Illinois
Because it is a no-fault divorce state, the only grounds for divorce in Illinois is irreconcilable differences. This same holds true for military divorce in Illinois.
Spouses can prove irreconcilable differences to the court by separating for six months. Or, both spouses can assert that the marriage is irretrievably broken with no chance for reconciliation.
Residency requirements for military divorce in Illinois
Residency requirements dictate where a couple can file for divorce and what laws the divorce will be subject to. Typically, one spouse must have lived in Illinois for at least 90 consecutive days before they can file for divorce there. But when the divorce involves a military spouse, residency is more flexible.
A military servicemember can file for divorce in their state of domicile or in the state where they are stationed. Thus, a military member stationed in Illinois is considered a resident for purposes of filing for divorce if they have been stationed there for 90 days or more.
Filing, serving, and answering the petition for divorce
Once residency has been established, the next step is for one or both spouses to initiate the divorce process.
This begins with filing a petition for divorce. The petition sets out the grounds for the divorce and the desired outcome regarding the division of property, child support, child custody, and other pertinent issues.
A copy of the paperwork is served on the non-serving spouse, the respondent. They must “answer” within a given period of time. If the respondent is a servicemember stationed outside the country, the service of divorce papers might require additional steps, depending on international law and military regulations.
Divorce in Illinois requires the submission of multiple legal forms. These include:
- Petition for Dissolution of Marriage
- Summons Illinois Marriage and Dissolution of Marriage Act
- Affidavit of Military Service, and, if necessary
- Declaration Under Uniform Child Custody Jurisdiction Act (UCCJEA)
How and where to file and serve divorce papers
Once these forms are completed, they must be filed in the county where the petitioning spouse resides or is stationed. Unless the petitioning spouse qualifies for a fee waiver, a filing fee will be charged.
A copy of the divorce documents must be served on the other spouse according to legal requirements. Typically, divorce papers must be served in person by a law enforcement officer or process server or by mail.
If a military spouse is stationed outside the country, service can be more complicated. In this case, the court may have to appoint another officer of the court to provide this service. The Hague Service Convention also provides ways for service to be accomplished through a central authority of that country or by using other diplomatic channels.
If the divorce is uncontested, the servicemember can waive these service requirements.
What is the Servicemembers Civil Relief Act?
The Servicemembers Civil Relief Act (SCRA) is a federal law designed to ease the financial and legal obligations and burdens of military servicemembers while they are engaged in military duty.
Under the SCRA, a military spouse can postpone divorce proceedings until 60 days after their service ends. The SCRA further protects a military spouse from possible default divorce judgments.
How do Illinois military divorces work with children?
In any divorce involving children, whether military or civilian, the child’s best interests will always be the most important consideration.
For a military spouse, active service, deployment, and frequent relocation can complicate child custody and visitation. As a result, military families must be more flexible regarding custody, parenting plans, and visitation schedules. Courts will typically look for more creative provisions to provide stability for the child during a military spouse’s absence. They may encourage virtual visitation or connection with other close family members whenever possible.
Servicemembers are also required by law to support their children. Guidelines for determining child support are dictated by Illinois state law and are generally the same as civilian divorces. But military members receive pay in various forms, including base pay, household allowances, subsistence allowances, and other forms of pay. These various income streams must all be considered in the calculations for child support.
Most states provide for child support garnishment that goes directly to the custodial parent. But it’s important to note that military wage garnishment for child support can be limited, and the withholding order must meet specific requirements.
What happens to military pensions in Illinois divorce?
A military pension is typically a significant marital asset in an Illinois military divorce.
Marital property, including retirement benefits, is subject to equitable distribution in a civilian divorce in Illinois. But the division of military pensions is governed by the federal Uniformed Services Former Spouse’s Protection Act (USFSPA) and is awarded differently.
State courts can award an equitable share of a military servicemember’s pension to a non-military spouse, but in order for the ex-spouse to receive a direct payment from the Department of Defense, they must fall under the “10/10 rule.” This means that the military spouse must have served at least 10 years in the military, overlapping with 10 years of marriage to the non-military spouse.
If the couple does not meet the 10/10 criteria, the court can still award a portion of the military pension to the non-military spouse, but it would not be disbursed through the Department of Defense.
Differences between military and civilian divorces
Although civilian and military divorce share many similarities, there are some significant differences.
- Servicemembers have federal protections that are not afforded to civilians during a divorce.
- A servicemember can choose between filing for divorce in the state where they live and where they are stationed. That state’s laws will dictate many matters in the divorce process.
- A military divorce can be postponed under the Servicemembers Civil Relief Act.
- Active duty custody and visitation can be complicated.
- All sources of military income must be considered in child support calculations, but what is garnished will be limited.
- Former military spouses may keep their TRICARE healthcare coverage if they satisfy the 20/20/20 rule (20 years of marriage, 20 years of service, and 20 years of overlap between the two).
- The length of the marriage and military service can be relevant in military pension division according to the 10/10 rule.
- A non-military ex-spouse may be able to collect income from the servicemember’s pension after their death through the Survivor Benefit Plan (SBA).
If you are navigating a military divorce in Illinois, it’s important that you understand how some federal laws will affect you and your divorce. At Hello Divorce, we offer cost-effective online divorce plans and also attorney consultations to those needing legal advice. Schedule your free 15-minute phone call to learn more.
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