The unique legal issues you face when divorcing as a military couple in Oakbrook Terrace, IL, include custody matters and the division of military benefits. Active-duty protections may factor into your situation, as well. For instance, if one spouse is on active duty, the court may temporarily suspend the divorce proceedings to make sure the active-duty member has adequate opportunity to respond to a divorce petition.
A good approach to military divorce is to work with a lawyer experienced in both family law and military regulations. Call Erlich Law at (630) 538-5331.
How Does the Legal Process Differ for Military Couples Seeking a Divorce?
Military and civilian divorces in Illinois usually have much in common. However, a few unique military issues can make a difference.
Active Duty
In Illinois, about 16,430 residents are active-duty service members. About 4,809 are active-duty spouses, and the state has 9,717 active-duty children. The Service Members Civil Relief Act may offer an active-duty spouse protections in the divorce. A service member can request a stay (suspension) of divorce proceedings if his or her service would affect his or her ability to participate in the divorce in important ways. This stay can last for as long as 60 days after the end of active duty. In other words, a military spouse may have to wait to get divorced if the service member gets the proceedings suspended.
The act also offers protection against default judgments in Oakbrook Terrace. In Illinois, the person served with divorce papers (the respondent) has a period of time, usually 30 days, to file a response, assuming he or she wants to respond. If no response occurs, the petitioner can request a default judgment. Such a judgment means the divorce can continue without the respondent, and the terms generally favor the petitioner. The SCRA, however, prevents default judgments from being entered against active-duty service members until after their active duty ends. This provision is one way to make sure they can participate fully in the divorce process if that is what they want.
Retirement Benefits
Meanwhile, the Uniformed Services Former Spouse Protection deals with the division of military retirement benefits. If a spouse wants to qualify for part of a military spouse’s retirement benefits, the couple must have been married at least 10 years, and the service member must have performed at least 10 years of active duty (the 10/10 rule). Tricare is the military’s health care system, and some former spouses qualify for coverage after the divorce.
Residency
Residency requirements apply for divorce in military families, too. For a divorce in Illinois, one spouse must have lived in the state for at least 90 days or been stationed there at least 90 days. When petitioners arrange for divorce papers to be served overseas, the papers must also be translated into the local language, even if the respondent does not speak the language.
Child Support and Alimony
When divorcing as a military couple, child support and alimony may be important considerations. The military member’s basic allowance for housing can be a factor in deciding support payments, but combat pay might not be. Not paying child support can result in wage garnishment or various penalties under the Uniform Code of Military Justice.
The same issues may apply whether just one spouse is in the military or both are. However, if both are in the military, custody or visitation may be even trickier. Residency rules and whether the divorce proceedings are suspended for active-duty service members may be factors, too.
Special Considerations for Custody and Visitation
In military families, one parent (or maybe both parents) are deployed, stationed, or based in different places. These logistics can make getting custody or regular visitation tricky for service members who are deployed or who relocate often.
Illinois courts prioritize children’s best interests in all custody cases, including those with parents divorcing as a military couple. Courts may give primary custody to the nonmilitary parent if the military spouse is on active duty or deployed. After deployment or active duty ends, however, the military parent can request custody modifications.
Temporary custody orders are one way that courts in Illinois can make sure service members are able to maintain relationships with their children even if parents cannot meet custody or visitation obligations during deployment.
Courts may also weigh the impact of future deployments when it comes to custody arrangements. For parents who are settling matters between themselves (without court intervention), it can be helpful to plan for custody or visitation changes. Experienced attorneys can work with military families to proactively address these issues.
Military-specific tools, such as family care plans, often factor into custody issues. These plans describe how military parents ensure their children’s care while or if the parents are deployed. The plans help with custody or visitation transitions during service.
Protecting Your Rights During a Divorce in Oakbrook Terrace, IL
Divorcing as a military couple requires the spouses to pay attention to several factors to protect their rights. Common important areas include property division, spousal support, and retirement benefits.
Military Pensions
Under Illinois law, military pensions are often marital property. The 10/10 rule comes into play during many divorces. It means qualifying spouses can get a direct payment of their pension portion through the Defense Finance and Accounting Service.
For couples who have not been married at least 10 years or in which one military member was not on active duty at least 10 years, the spouses can to work out alternative financial settlements. They include lump-sum payouts or increased spousal support and must be disbursed from one spouse to the other, without DFAS direct involvement.
Child Support and Spousal Support
Military regulations play a role in spousal and child support amounts. Generally, child or spousal support cannot be more than 60% of a military spouse’s disposable income. Factors such as whether the service member is supporting other dependents and whether there are child or spousal support obligations from previous relationships can affect the amount. Basic pay, basic allowance for housing, and other entitlements may be considered as military income, but combat pay and some other types of pay might be excluded.
Health Insurance
Tricare benefits typically end on the day of the divorce unless the former spouse meets specific criteria. A spouse can purchase up to 36 months of temporary health coverage through the Department of Defense Continued Health Care Benefit program after losing Tricare benefits due to divorce. Alimony agreements or other agreements between the spouses can help with these expenses.
The ex-spouse could remain eligible temporarily for Tricare if the marriage lasted at least 20 years, with military service lasting at least 20 years, and the marriage and service overlapped for at least 15 years. Under this 20/20/15 rule, a spouse in Oakbrook Terrace, IL, may be eligible to stay covered for one year after the divorce. Spouses meeting the 20/20/20 rule (at least 20 years of marriage, at least 20 years of service, and at least 20 years of overlap) may be able to stay covered by Tricare for life unless they remarry.
Housing and Moving Costs
A military spouse may lose housing due to a divorce. However, the military might cover moving costs if the duty station is overseas. The spouses can also negotiate other financial arrangements to address housing, moving, and similar matters.
Uncontested Divorce
When one spouse negotiates a military spouse divorce settlement, it is a good idea to work with an uncontested divorce lawyer who understands military law. If both spouses can agree on the terms of the divorce, they could have an uncontested divorce.
This speeds up the process because uncontested divorce requirements are fairly straightforward, and court intervention should not be necessary. Uncontested divorces typically mean less stress, emotional strain, and financial expense.
A military spouse divorce lawyer should differentiate between marital settlement agreements vs. divorce decrees. A marital settlement agreement is the agreement spouses make outlining how they are dividing assets and taking care of matters such as child and spousal support. It may also address Tricare benefits or survivor benefits. However, the divorce decree is the official court document legally ending the marriage (the finalization of the divorce).
How long an uncontested divorce takes depends largely on how quickly and easily the spouses reach agreement. Issues such as high net worth, long marriages, and minor children can add complications to a divorce and make it take longer.
Overall, the uncontested divorce process may take just a few months. However, disputes can arise that extend the timeline by several months or more.
The military offers various types of legal assistance, and your lawyer can explain these to you. Emotional and mental supports may be available, too. Emotional counseling and financial counseling can help you get through a divorce, as can health and wellness coaching. Counseling can be available for military children, too.
Military divorces often have special considerations. Contact us at Erlich Law Office to find out more about your rights.
