Determine Proper Jurisdiction for Filing Divorce
Your first challenge is to determine where to file your divorce papers. Civilian spouses are limited to the state where at least one of them has established residency, but you have more options. You can file in the state where you live, the state where your spouse is stationed if he’s stateside, or -- if he’s deployed -- where he claims his legal residence if it isn't the same state where you currently reside. Every state has different rules regarding custody, child support and property distribution, so you can choose any one of these states that best suits your objectives. If you have children, however, this complicates things. Under the terms of the federal Uniform Child Custody Jurisdiction and Enforcement Act, the only state that can decide the custody terms of your divorce is the one where your children have lived for six months before you file. This may limit you to filing for divorce in the state where you currently live.
Serve Your Spouse With Court Papers
After you file for divorce, you must serve your spouse with a copy of the divorce papers so the state court has jurisdiction over him and is able to issue orders that affect him. This can be tricky if he doesn’t want to accept the papers, so you might need the help of an attorney. If he’s deployed, you can ask his military branch for assistance, but this doesn’t mean you’ll get it. His commanding officer isn’t obligated to serve him for you if your spouse doesn’t want him to do so. The best he can do is ask your spouse if he wants to accept service -- which he might do if he also wants the divorce. Some states allow you to serve a divorce complaint or petition by certified mail, so depending on where you live, this might be an option, but you still might need the help of an attorney who specializes in military divorces to make sure you follow proper protocol.
Be Prepared for a Delay
The Servicemembers Civil Relief Act can stall your divorce for a period of time after you serve your spouse with divorce papers. SCRA protects your spouse against a default judgment being entered against him if he’s serving his country and can’t defend himself in legal proceedings, including divorce. He can enlist the help of an attorney stateside to petition the court to request a postponement of your proceedings until he’s better able to deal with it. This can add up to some considerable time -- he’s technically entitled to put the proceedings on hold for the duration of his deployment plus an additional 60 days. At a minimum, your divorce proceedings can be held up for at least 90 days, giving him time to address the situation from overseas. If he also wants the divorce and won't contest custody or property terms, he can waive his rights under SCRA so you can move ahead with the divorce.
If your spouse claims his right to a postponement, the court doesn’t have to wait three months or more to make a temporary custody order for your children until he returns. SCRA doesn’t prevent state courts from issuing temporary orders while your divorce is pending. A judge can order child support as well while you’re waiting for your marriage to be permanently dissolved.
- Divorce Source: The Service Members’ Civil Relief Act
- DivorceNet: Child Custody and the SCRA
- Divorce Source: The Mechanics of Divorcing in the Military
- United States Department of Justice: Servicemembers Civil Relief Act (“SCRA”) (PDF)
- U.S. Department of Justice: The Uniform Child Custody Jurisdiction and Enforcement Act (PDF)
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