In some circumstances, a divorce needs to move forward while one of the spouses is deployed overseas. It is not an ideal situation, but divorce is often the best way for both parties to move forward with their lives. However, the situation becomes tricky when one individual is not only far away, but is often without consistent means of communication and in dangerous situations.
Due to the unique aspects of the situation, someone filing for divorce from an active service member should have a skilled family law attorney by his or her side.
Jurisdiction
If you live in Illinois, you are likely to file for divorce in your county, no matter where your spouse is deployed. However, there are other places you can legally file for divorce, including where your spouse claims his or her legal residence. If his or her legal residence is in another state, you may want to review the best place to file with an attorney. Depending on each state’s law regarding divorce, property distribution, and child custody, it may be to your advantage to seek a divorce in the other state.
Service of Process
Serving the other spouse with the divorce complaint is a crucial legal step in seeking a divorce. However, a deployment can make serving your husband or wife more difficult.
If you wish to proceed with a divorce while your spouse is overseas, you will need to know the ways your state allows you to serve notice. If it is allowed by your state and the host country, the easiest way to serve a member of the military is through certified mail with receipt requested. Additionally, you may need to request help from relevant branch of the military to ensure he or she is given the papers. A commanding officer is not required to serve process on a base. However, if your spouse will voluntarily accept service, then he or she will be given the papers.
In addition to following Illinois law, you must comply with the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents, if the host country is part of the convention.
It is clear that having an experienced Naperville family law attorney by your side is important when determining the proper and most efficient way to service notice to a spouse overseas.
Servicemembers Civil Relief Act
Your husband or wife may have right under the SCRA to ask the court for a postponement of the proceedings. The purpose of the act is to pause certain civil obligations so that military members can focus on their duties. However, whether or not a divorce is one of these civil obligations may depend on the state in which you live. Not all lawmakers believe the SCRA applies to divorce.
If it does apply, once your spouse is served notice, then he or she can ask for a 90 day or longer stay of the proceedings.
A divorce during this time is possible, but special issues arise and it can take a considerably longer time than the average divorce. An experienced DuPage County family law attorney from our office can advise an individual in this situation of his or her rights and on how to move forward.
Sources:
https://www.justice.gov/sites/default/files/crt/legacy/2011/03/23/scratext.pdf
