Divorce is a complicated part of life regardless of you and your soon-to-be-ex-spouse’s careers. However, certain unique issues may arise when your or your spouse is in the military. You may have questions regarding where you can file for divorce or what will happen regarding you or your spouse’s military benefits in a divorce.
What Happens with Military Retirement Pay in a Divorce?
Servicemembers who serve at least 20 years of military service are usually entitled to receive military retirement pay. In 1981, the United States Supreme Court addressed the issue of what happens to military retirement pay in a divorce in a case called McCarty v. McCarty. It held that because federal law precluded a state court from dividing military retirement pay under state community property laws, the non-military ex-spouse was not entitled to a portion of the military ex-spouse’s retirement pay.
In response to this ruling, Congress passed a new law called the Uniformed Services Former Spouses Protection Act, or USFSPA. This new law allowed state courts to do what the Supreme Court said the old law did not allow. States can now divide up the military ex-spouse’s “disposable retired pay” in a divorce, although they are not required to do so. In order for a court to do this it must have jurisdiction over the military ex-spouse, either through his or her residence within the state not due to military orders, domicile within the state, or due to his or her consent.
Where Can One File Divorce When a Spouse is in the Military
As a general rule, you can file divorce where either you or your spouse have legal residence. However, if your soon-to-be-ex-spouse has been or will be in the military long enough to qualify for military retirement benefits, and you want the judge to award you part of those benefits, it may be in your best interests to file in the state where your spouse resides so the court has authority to do that.
What if My Military Spouse is on Active Duty?
If the servicemember is on active duty then the Servicemembers Civil Relief Act will apply to your case. This federal law can change the normal court deadlines and schedules. For example, if the servicemember’s duties prevent him or her from responding to the divorce (imagine, for example, that he or she is deployed overseas in a combat zone), then he or she can obtain what is called a “stay.” This, in effect, pauses the proceedings. However, this cannot be used to permanently put off a divorce.
Call Sullivan Taylor & Gumina, P.C.
If you are in the Naperville area and you are considering a divorce, you should contact the experienced Illinois family law attorneys at Sullivan Taylor & Gumina, P.C. Our phone number is (630) 756-5112. We can help you though what can be a complicated process and work with you to obtain your goals regarding both property distribution and any child custody and child support-related issues.