Divorce for Active Duty Military Personnel

My spouse is at war, but I want a divorce

Many states have some type of residency requirement in a divorce procedure, laws that require living in a certain state or county for a certain period of time before the procedure can begin. But what happens when one spouse is on active duty in the military and deployed overseas? What is the procedure for divorce in the military for active duty military personnel? What if they are unable to respond to a stateside spouse’s filing of divorce papers because they are on active duty in the heat of the action in Iraq, Afghanistan or other deployment zones? How can stateside attorneys impose tight deadlines on these servicemen and servicewomen engaged in fighting for their country’s interests abroad?

Congressional assistance

Military personnel on active duty have some congressionally constructed legal protection from divorce proceedings that are not granted the civilian population. Under the Servicemembers Civil Relief Act (SCRA), signed into law by President George W. Bush on December 19, 2003, which revamped a law passed in 1940 called the Soldiers and Sailors Civil Relief Act, the U.S. Congress acted to protect the legal interests of male and female military personnel from lawsuits – including divorce proceedings – to enable them “to devote their entire energy to the military needs of the nation.” If the court rules, the legal proceeding may be stayed, or delayed, for the time the service member is on active duty, and then for 60 days after that.The Servicemembers Act also prevents the active duty serviceperson from being held in “default” in some circumstances for not responding to the divorce proceeding. If a party is in the military, the court may appoint an attorney to represent the serviceperson, but only for the default proceedings and not for the divorce action itself.

Jurisdictions for divorce

In a military divorce, there may be up to three separate jurisdictions where one can file for divorce:

The legal residence of the military member

The legal residence of the spouse

The state that the servicemember is stationed in.

Military personnel don’t change their legal residence merely because they move to another state. The SCRA allows military personnel to live in one state, yet claim another state as their legal residence.

The same is not true for the spouse. The spouse’s legal residence is usually the state they currently reside in. In order to file for divorce, however, in most cases, the person would have to establish minimum residency requirements, ranging from three months to six years. Also, most states have laws which allow military personnel or their spouse to file for divorce in the state the servicemember is stationed in, even if the servicemember or spouse are not legal residents of that state. Many states even exempt a minimum residency for military divorce actions.

For answers about rules for divorce for military personnel, as well as information about attorneys in your area, log on to our home page at DivorceAttorneyHome.com.