Chicago Military Divorce Lawyer
The phrase “military divorce” refers to a divorce where at least one of the spouses is a military servicemember. There is not a different legal process for the spouses to go through, however. Proceedings do not occur on a military base or under military law, and servicemembers do not get a lawyer provided to them by the military. Instead, the divorce petition will be filed in an Illinois county court using the same process, rules and laws for other divorce cases. The same grounds for dissolution of marriage apply (irreconcilable differences), and the same issues must be resolved before a divorce can be granted (division of marital property, alimony/maintenance, child custody, child support).
Although military divorces follow the same general pattern as civilian divorces, there are important distinctions to consider. Several federal laws address unique aspects of divorce where a military servicemember is concerned. This is why we have the term “military divorce,” and it’s why you need an experienced divorce lawyer on your side if you or your spouse are in the military. Read on for a description of some of these unique considerations, and call our skilled and knowledgeable Chicago military divorce lawyers for help with a military divorce.
Unique Features of Military Divorce – Residency
Every divorce case has residency requirements, including military divorces. The general rule is that either spouse must be a resident of Illinois for at least 90 days before one of them can file a petition for divorce here. The Illinois statute setting out this residency requirement makes it clear that being stationed in the state while a member of the armed services and maintaining a military presence here for 90 days will fulfill the residency requirement. The 90-day period is calculated from the date the petition for dissolution of marriage is filed with the county court or the date the court finds that there has been an irretrievable breakdown of the marriage. If you or your spouse is stationed at Naval Station Great Lakes Training Center in North Chicago, for example, either one of you would be authorized to file for divorce in an Illinois court.
Unique Features of Military Divorce – Timelines
The process for obtaining a divorce in Illinois starts with filing a petition for dissolution of marriage with the county court and serving a copy of those papers on the other spouse. If that spouse does not respond by filing an answer with the court within 30 days, then the filing spouse can win a default judgment and get everything they asked for in their complaint. But serving a deployed spouse is not always a simple matter, and it can be difficult for a servicemember who is overseas or on active duty to respond to court filings in a timely manner.
Recognizing this, a federal law known as the Servicemembers Civil Relief Act gives a servicemember up to 60 days after returning from active duty to respond to a legal proceeding, including a divorce petition. Any default judgment entered against the servicemember can be vacated or set aside if it was entered during the period of military service or within 60 days after termination or release from service. This extension is only available if the servicemember can prove their deployment materially affected their ability to respond, which can be a tricky and complicated matter to establish.
Civil proceedings, including divorce or custody actions, can be postponed for 90 days under the Act. Depending on the circumstances, postponement can be either discretionary or mandatory. Again, the military service must materially affect the servicemember’s ability to appear, which must be proven with an official letter or other communication. The servicemember can also waive this right and move forward with a divorce filed in Illinois even while overseas.
Unique Features of Military Divorce – Property Division and Support
When dividing marital property or calculating support, Illinois courts look at the parties’ income from all sources. Military pay comes in a variety of forms and involves many more benefits than most civilian employees receive, such as a housing allowance. An experienced military divorce lawyer will understand how to analyze a servicemember’s Leave and Earnings Statement (LES) and how that LES factors into the divorce.
Another major asset that must be considered is military retired pay. The Uniformed Services Former Spouse Protection Act authorizes state courts to divide military retired pay as a marital asset and apportion a military pension accordingly. A former spouse of a military member could be entitled to a marital share of the pension based on its accrual during military service while married, including disposable retired pay (non-disability military retirement earned during the marriage). A former spouse can also be designated as a beneficiary under the servicemember’s Survivor Benefit Plan.
Former spouses can also continue to receive valuable benefits available to military spouses, including commissary and exchange privileges as well as TRICARE and other health care benefits. If the marriage lasted for 20 years or more, the servicemember has 20 years or more of service, and there are at least 20 years of overlap, then the former spouse can receive benefits for a lifetime (the 20/20/20 rule). If there are only 15 years of overlap, the former spouse can receive benefits for a one-year transitional period (the 20/20/15 rule). If the military spouse was abusive, the former spouse is entitled to benefits under shorter time frames.
Contact Birnbaum Gelfman Sharma & Arnoux, LLC Today
When a divorce involves a member of the military, it’s important to retain the services of an experienced family law attorney who knows there are special rules and details that must be considered to ensure the process moves forward smoothly and fairly. For help with a military divorce in Chicago and surrounding areas, please call our experienced Chicago military divorce lawyers today.