Many divorces involve unique circumstances that the parties and their divorce attorneys may find challenging. When one spouse (or both spouses for that matter) is a U.S. service member, there will be additional family law issues for the parties and their military divorce attorneys to address.
Military Divorces Invokes Specific Jurisdictional Issues.
The first concern with a military divorce is one of jurisdiction. Where should the petition for divorce be filed? With a military divorce, there are three possibilities:
1. The divorce is filed in the service member’s state of residence.
The military member’s domicile, or state of legal residency, is the state where he or she intends to return following discharge from service or, if career military, upon retirement.
2. When different, the divorce is filed in the non-military spouse’s state of residence.
One of the complications for military families is that they are often separated by substantial distances for long periods of time. A non-military husband may be employed and reside in Chandler, Arizona, while the military wife is stationed at Fort Bragg, North Carolina, with Ohio as her state of legal residency.
3. The divorce is filed in the state where the service member is stationed.
To file a petition for dissolution of marriage in Arizona, one of the spouses must have been a permanent resident here, or been domiciled here, for 90 days or longer. When a spouse is stationed in Arizona, perhaps at Davis-Monthan AFB in Tucson, then a 90-day military presence in the state is sufficient to satisfy jurisdiction and the divorce may be filed with the Superior Court here.
Active Duty Service Members Are Protected from Lawsuits By the SCRA.
When the service member is deployed or on active duty, he or she may assert legal protections from lawsuits under the Servicemembers’ Civil Relief Act (SCRA). The SCRA protects active duty military who have been served with papers in a divorce action, bankruptcy, or other civil lawsuit. This is so they can focus on their military duties knowing they will have the opportunity to appear, advocate, and defend themselves in a court of law later, when their deployment is over. Therefore, a service member may request that divorce proceedings be suspended for up to 90 days after he or she leaves active service. Depending on how long the military spouse is deployed, then, provisions in the SCRA can delay lawsuits for over a year.
Marital Property Laws of the State Where the Divorce Is Filed.
When there are three possible options, why is selecting the state so important in a military divorce? Because the laws of the state where the divorce is filed will control the division of marital property, child custody and parenting time, child support, visitation, and spousal alimony. If the divorce were filed in North Carolina where a military spouse is stationed at Fort Bragg, for instance, then an equitable distribution of marital assets would be ordered by the Court. If the divorce were filed in Arizona, however, the Court will order an equal division of community assets and debts. Therefore, where the military divorce is filed can have a significant impact on the futures of the former spouses and their children.
At the Law Offices of Scott David Stewart, our military divorce attorneys represent service members stationed at Luke AFB, Davis-Monthan AFB, Fort Huachuca, MCAS Yuma, Yuma Proving Ground, and other bases in the U.S. and overseas. Contact us when you need to talk to a divorce attorney who is experienced in military divorce law.
U.S. Politics Today: Military Men and Women Face Unique Divorce-Related Challenges