If either you or your spouse is a member of the military and you are considering a divorce, then you should know that there are specific considerations that may apply in your case but not in other non-military divorces. For example, things like division of property concerning military retirement pay are governed by separate laws. These additional considerations can make getting a divorce a little more complex. Having an experienced military divorce attorney help you through the process will be key to making sure your interests are met.
At Dolci & Weiland, our divorce attorneys are skilled and have a deep understanding of family law. It is our approach to listen to our clients and develop a plan that incorporates their wants and needs in accordance with the law. We will fight for your interests and negotiate terms that are agreeable. Here is an overview of things to consider if you or your spouse is in the military and you are seeking a divorce, child custody, and/or support.
What are the residency requirements for a military divorce in Illinois?
In order for anyone – whether you are in the military or not – to request a divorce in Dupage County, Cook County, or any other place in Illinois, certain residency requirements must be met.
The residency requirements for a military family is similar to that of any other married couple in Illinois with one minor difference as outlined by the Illinois Marriage and Dissolution of Marriage Act. While one spouse of a non-military family must reside in Illinois for 90 consecutive days prior to filing divorce papers, one spouse of a military family must be stationed in Illinois for 90 consecutive days.
What is the process for a military divorce in Illinois?
The divorce process is relatively the same for a military couple as it is for a non-military couple. There are a few things to consider here, however, and that is: when one spouse files for divorce while his or her partner is on active duty, certain protections and procedures are put into place to ensure a fair divorce process.
Divorce Proceeding Postponement. The Soldiers and Sailors Civil Relief Act allows Illinois courts to postpone a divorce proceeding when one spouse is on active duty. This makes sure the active-duty spouse is not held in default for failure to respond to a summons. The divorce can be postponed for the entire length of the military spouse's active duty plus 60 days after the active duty ends. Of course, the active-duty spouse can waive this right if he or she wishes to proceed with the divorce, too.
Local Language Requirement. The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents requires that when one spouse serves an active duty spouse divorce papers while he or she is abroad, the documents must be served in the local language regardless of whether or not one or the other spouse speaks that local language. When served abroad, the active duty service member can waive his right and sign an affidavit to allow the divorce proceeding to move forward.
How does Illinois law consider child custody when a parent is in the military?
The interests of the child are always at the heart of what the court determines in child custody cases. That is no truer than in military cases. The court does, however, in these unique circumstances, take into consideration the difficulties of active military duty and the need to ensure the child can develop a meaningful relationship with the military parent.
If you are on active duty or anticipating it, the court will consider this and may award the other spouse primary custody. This child custody order, however, can be modified once you are no longer in the military, no longer on active duty, or no longer expecting to be deployed any time soon.
It is important to keep in mind, however, that though your circumstances are changed, the court may not award a modified custody order. It all depends on the facts, circumstances, and what's in the best interest of the child.
How does Illinois law consider spousal or child support when one spouse is in the military?
If you are not the military spouse but are seeking child support and/or spousal support, the amount received cannot exceed 60 percent of the military spouse's pay and allowances.
The court will consider the same factors it does in any other divorce with respect to child support and alimony.
How is property divided in an Illinois military divorce?
When it comes to property division, the same Illinois laws that apply in a non-military divorce apply when one or both spouses are in the military. There is, however, one exception.
The Uniformed Services Former Spouse Protection Act governs how military retirement is apportioned during a divorce. Typically, a former military spouse will only receive a portion of his or her spouse's retirement account. To qualify, the couple must have been married for 10 years or longer and during that time, the spouse must have been on active duty.
Contact Knowledgeable Military Divorce Attorneys in Chicago & Dupage County Today
At Dolci & Weiland, we understand that military life can be stressful for families. The military demands a lot of time and often that time is time spent away from the family. When a military marriage fails, one spouse may file for divorce even though the other spouse is on active duty. We understand how sensitive these issues can be and so we put in the effort to ensure your rights and interests are met.
If you or your spouse is in the military and one of you are considering a divorce, contact Dolci & Weiland today. We represent clients throughout Dupage County and Cook County.