Chicago Military Divorce Lawyer

Generally, a couple must file for a divorce in the state where they live. However, this is not always easy for members of the military who are on active duty. At any given time, active members might be deployed, which can create some issues when filing for divorce. In some cases, a couple might not have resided in a state long enough to meet its residency requirements.

Under these circumstances, you could either file for divorce in another state or you can wait until either you or your spouse meets the residency requirements in Illinois, which is 90 days. If the active duty service member was stationed in Illinois for 90 days, this also satisfies the residency requirements for the state. If he or she is stationed or deployed in a different state, and neither you nor your spouse was a resident of Illinois for at least 90 days, then you might need to file for your military divorce in a different state.

Serving an Active Duty Member with Divorce Papers

If you are filing for divorce and your spouse is an active duty member, they must be served with divorce papers in person. If the divorce is uncontested, the spouse of a military member can waive the affidavit and forego serving divorce papers in person.

How the SCRA Protects Members of the Military

Members of the military are protected by federal law from being divorced without knowing the action was filed in court. Therefore, under the Servicemembers Civil Relief Act (SCRA), a military divorce in Illinois can be postponed if the spouse is on active duty. If the active duty service member wants the divorce proceedings to move forward, they can waive these protections.

What Is a Military Spouse Entitled to in a Divorce?

Because Illinois is an equitable distribution state, the courts are focused on coming to a property division settlement, meaning the courts look for balance and fairness in equitable distribution. Consequently, how property and debts are divided will vary case by case. This is the same for military divorces.

Common assets that must be divided during divorce include:

• Bank accounts
• Cars, boats, and other property
• Investment portfolios
• Real estate, including homes and investment properties
• Retirement accounts, including pensions

During the divorce process, the separating couple will negotiate a divorce settlement, just a civilian couple would; however, if you or your spouse are in the military, this process is complicated by rules surrounding military pensions.

Because military divorces are subject to both state laws and federal laws, how military pensions are divided and distributed is directly impacted. Therefore, it is vitally important that if you or your spouse are/were in the military and get divorced, you work with a skilled attorney experienced in handling military divorces.

How Are Military Pensions Divided in a Divorce?

One of the most challenging aspects of a military divorce is dealing with military pensions. Under Illinois law, retirement accounts and pensions may be classified as marital property and be subject to the property division process. The Uniformed Services Former Spouses' Protection Act (USFSPA) deals directly with military pensions and is an important piece of legislation that provides guidance on how the former spouses of military service members can receive their portion of their ex's military pension.

This Act "recognizes the right of state courts to distribute military retired pay to a spouse or former spouse," and "provides a method of enforcing these orders through the Department of Defense." This means that qualifying ex-spouses of military service members who are awarded a portion of their ex's military pension can receive their payments directly from the military.

It is important to remember that spouses are not automatically entitled to their ex-spouse's military pension under this Act. Instead, this will be decided during the state's divorce process. Generally, the military service member's spouse will only be entitled to the portion of the service member's pension that is classified as marital property (contributions and earnings made during the marriage).

What Is the 10/10 Rule in Military Divorce?

The 10/10 rule in military divorce governs how a former spouse's portion of the service member's pension is dispersed after a divorce. If eligible, the 10/10 rule allows the former spouse to collect their share of the retirement pay directly from the DFAS (Defense Finance and Account Service).

The 10/10 rule gets its name from the eligibility requirements it stipulates. To be eligible, the former spouse must have been married to the service member for at least ten years, and during the marriage, the service member must have accrued ten years of creditable active service.

If you are unsure if you qualify for the military retirement 10/10 rule, or need help with your divorce case, turn to an experienced lawyer, like ours, at the Law Offices of Jonathan Merel, P.C., for help. Our attorneys have helped many military families navigate the difficult divorce process, and we are prepared to use our experience to help you, too.

Call us at (312) 487-2795 to schedule a consultation with a Chicago military divorce lawyer.