If you or your spouse is serving in the U.S. military, or has done so in the past, you know that military life can differ from civilian life in many significant ways. If you decide to divorce, virtually all aspects of the process, from the division of assets to the allocation of parental responsibilities, will be handled somewhat differently than if you were both civilians—especially if either of you are still serving.
The Jurisdiction Question
Normally, an Illinois court maintains personal jurisdiction over a divorce action when one or both spouses have resided in Illinois for at least 90 days. This is also true in military divorces, and being stationed in Illinois is considered maintaining residence in the state. However, in order for a court to have jurisdiction over an active military spouse, he or she must be served with a copy of the action and summons, so there is no question as to his or her knowledge of the proceedings. In the past, it was not uncommon for a servicemember to come home and discover they had been divorced without their knowledge!
It is also possible under the Soldiers and Sailors Civil Relief Act (50 USC 521) to postpone the proceeding for the entire length of a servicemember’s tour of active duty plus an additional 60 days if the proceeding is likely to be difficult and complex. It is in the discretion of the civilian court to decide whether or not to do so, but it is often granted, especially in times of war and elevated military conflict.
Many assets, such as furniture or other everyday items, are divisible as they would be in a civilian divorce, as provided in the Illinois Marriage and Dissolution of Marriage Act. However, certain assets and property are governed by the Uniformed Services Former Spouse Protection Act (USFSPA), including retirement accounts and military pensions. Contrary to popular belief, the USFSPA does not specifically grant any percentage of the servicemember’s retirement pay to his or her ex-spouse. Instead, the law grants a civilian court the power to treat this asset as marital property, thus enabling the court to divide it equitably. In most cases, the disposition ends up being similar to that of a civilian pension plan.
One important thing to remember is that the military utilizes what is referred to as the 10/10 rule. If you have been married to a servicemember for at least 10 years, while that servicemember has completed at least 10 years’ worth of creditable service, you are eligible to receive a portion of his or her retirement pay. If you do not meet this criteria, you are not eligible to receive any portion of that asset unless you work out an arrangement directly with your former spouse. The court may still award alimony or child support, but retirement pay is strictly regulated.
Seek Experienced Assistance
Divorce is almost never easy, and rules based on one or both spouses’ military service can make the process even more complex still. Contact a skilled Kane County divorce attorney to get the help you need with your case. Call 630-377-7770 for a free consultation at Bochte, Kuzniar & Navigato, P.C. today.