Can Spouses Divorce if One of Them is on Active Duty? 

 Posted on January 12, 2023 in Divorce

Deciding to get a divorce is often an extremely difficult and painful decision. This is especially true if you or your spouse are in the military. Suppose you or your spouse are an active duty service member. In that case, it is crucial to understand the considerations that will likely apply to your case as opposed to divorce cases where neither spouse is on active duty in the military. This blog will dive deeper into what you should know about seeking a divorce when a spouse is on active duty. If you ever find yourself in this position, it is essential to seek a knowledgeable divorce attorney who has worked with divorce cases involving active duty military members. 

What to Know About Statutes Protecting Military Members from Divorce Actions

It is important to know that there are laws that protect an active duty service member from being held in default for not responding to a divorce action. These types of laws exist to prevent active duty military members from getting divorced without their knowledge. Furthermore, the Soldiers and Sailors Civil Relief Act permits a court in Illinois to postpone any divorce proceedings for the entire duration of a military member's service and 60 additional days once their active service has ended. This helps prevent active duty military members from divorce while they are overseas or stationed in an area where it is difficult to respond. However, a military member can waive this right and thus have divorce proceedings begin while they are on active duty. 

What to Know About Serving an Active Military Spouse 

The spouse not on active duty will need to serve their active duty spouse with a summons and a copy of the divorce action. In cases where the active duty spouse is stationed abroad, the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents will require that the copy of the divorce action is presented in the local language, regardless of whether the active duty spouse speaks that language. In cases where the divorce is uncontested, the active duty spouse can elect to waive service obligations by simply signing an affidavit acknowledging the divorce action. 

What to Know About Residency Requirements 

Notably, the grounds for divorce and residency requirements are the same as filing for a military divorce. According to the Illinois Marriage and Dissolution Act, residency requirements for an Illinois divorce necessitate that either spouse lives in Illinois for 90 days or is stationed in Illinois for a period of 90 days. 

Contact a DuPage County Divorce Attorney

If you are interested in seeking a divorce from your active duty spouse, contact the highly astute DuPage County divorce lawyers with The Stogsdill Law Firm, P.C.. Call 630-462-9500 for a private consultation.

Sources: 

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqEnd=8300000&SeqStart=6000000

http://www.justice.gov/sites/default/files/crt/legacy/2011/03/23/scratext.pdf

http://www.hcch.net/e/conventions/menu14e.html