Divorcing A Military Or Imprisoned Spouse

Generally, the law provides certain protections for members of the military who are or will soon be on active duty. Courts typically have the right to postpone or suspend hearings until the service member can take part of the proceedings.

The federal government has instituted certain protections for service members who are parties to any civil action or proceeding, including child custody proceedings, where the defendant does not make an appearance. In such cases, plaintiffs must provide the court with an affidavit stating whether or not the defendant is in military service and, if that is not determinable, an affidavit stating that the plaintiff was unable to determine their military status.

Further, service members on active duty can apply for a "stay," or temporary halt, of any civil action are initiated against them while on active duty or within 90 days from their release from active duty (at the discretion of the court). Courts and the federal government want members of the armed service to focus their efforts and energy on serving their country without facing adverse orders or judgments against them for failing to appear in court.

There are generally three options spouses of military members have when choosing to file their divorce:

1. The state where the spouse filing the petition for divorce resides;

2. The state where the military member is currently stationed; or

3. The state where the military member claims legal residency.

When deciding where to file for divorce, a spouse married to a military service member should consider where couple votes, has paid state taxes, has a banking account, were issued driver’s licenses and car titles, qualify for in-state college tuition, or own property on which they pay real estate taxes when determining where to file. Couples should also consider the costs of traveling to another state to file all the necessary documents, meet with lawyers, and attend hearings if the case goes to trial.

You may also want to consider how the state handles the division of military pensions. Federal law states that the state of legal residence of the military member retains the power to divide the military pension in a divorce, so if you file in a state where he or she is not a legal resident, the court may not have the necessary power to divide the military pension.