How to File for Divorce While Your Spouse Is Deployed
It's easy to file for divorce while your spouse is deployed. The process begins in the same way as any other divorce. Understandably, there are some additional considerations that arise from your spouse being both overseas and in active duty military service.
The Service Members Civil Relief Act (SCRA) applies to anyone who's been called into active duty for at least 30 continuous days. Under this law, a deployed service member gains certain protections from legal proceedings against him. A deployed spouse can consent to a divorce and make the process relatively smooth, subject to the challenge of communicating from the other side of the world. If he wants to block the divorce, the military and Congress will generally protect him while he's serving the country, but that doesn't make a divorce while he's deployed impossible. It just means the process is more complex, and assistance from a legal professional is recommended.
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Instructions
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Review state laws. All divorces are subject to the laws of a particular state. Before filing, check the permitted grounds for divorce, whether there's a no-fault provision, and the requirements for jurisdiction. Many states will allow a divorce to be filed if a service member was stationed in the state at the time of her deployment, if her ship's home port is in the state, or if either of you have a current legal residence in the state for a certain period of time.
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File locally. Go to the courthouse in a county in which you can file. Get a petition for divorce form to fill out. Most likely, you will choose no-fault divorce or "irreconcilable differences" as the grounds. Mark your preferences for child support, alimony and the division of your jointly owned property.
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Serve process. Clearly, when your spouse is deployed overseas, service of process can present a challenge. One easy way, if you feel your spouse will consent to the divorce, is to send the papers via registered mail with a return receipt. Alternatively, you can request through the local military base that your spouse's commander serve process on him. By law, however, an active duty member of the armed services can only be served voluntarily. If he denies service, you will likely have to wait until he returns. You can then proceed under normal state laws.
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Arrange for time to negotiate. If your spouse consents to all the terms in the divorce, then he can simply return the paperwork indicating as much. If he wants to renegotiate some of the terms, you will have to arrange to communicate with him at a time when he can deal with these issues and have a lawyer present if he chooses. If the terms are particularly contentious, this can significantly complicate and delay the process since a judge's availability might have to be added to the mix.
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File agreement. The final step--before a divorce decree is issued and the process is formally complete--is the filing of a marriage settlement agreement. If the original terms of your petition are not contested by your spouse, then the terms there are simply carried over into the final document. If not, it reflects the outcome of your negotiations. This form is filed, with a draft order for the judge's signature.
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Tips & Warnings
The SCRA allows for the division of property of a service member according to the rules of the state in which the divorce is filed. The military pension, however, is subject to the rules detailed there.
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- Photo Credit Cpl. James L. Yarboro
