Military Divorce: Why Where You File Matters

divorce distance
In the civilian world deciding where to file for divorce is a no-brainer: You file where you live. But in the military community it is common for a couple to be from one state, married in a second state, living in a third state and own property in a fourth state.

Further complicating matters, the couple may have recently been moved by the military to the state where they live and they may not have been there long enough to establish residency. So how does a military couple decide where to file their divorce and does it matter which state they choose?

“It matters a lot,” said Mark Sullivan, a Raleigh, NC lawyer who is very familiar with the issues involved in military divorces.

Laws can vary from one state to another and where to file can make a big difference in how a divorce will proceed and in both parties’ situations after the divorce is final, he said. For example, Sullivan said that Puerto Rican divorce courts will not divide a military pension between the service member and the spouse.  So, while it would be beneficial to a service member to file there, it could be hugely detrimental to the spouse to allow the divorce to take place there. 

Military divorces, when one or both spouses are active duty, National Guard or Reservists, are basically the same as civilian divorces, but there are a few important differences, he said, and having a choice in where to file is one of them.

Sullivan is the author of a guide for lawyers called The Military Divorce Handbook (available for purchase at www.abanet.org/) and he has also written several informational pamphlets (available at www.nclamp.gov) on the issue of military divorce. He often lectures other lawyers, including military lawyers, on issues surrounding military divorces.

Stephanie W., an Army wife who lives on post at Fort Bragg, NC, is in the early stages of divorcing her husband of eight years. She caught him cheating on her a year ago and, after attempting to reconcile for most of the past year, they have determined that their marriage is not salvageable.

Sullivan says that people in Stephanie’s situation first need to determine which state will have jurisdiction over their divorce. 

“It needs to be a place where you have actually lived,” Sullivan said, “not just somewhere you claim for tax purposes.” Sullivan noted that the official home of record that a service member claims often has nothing to do with which state will have jurisdiction over a divorce.

Stephanie and her husband were married in New York state, where he is from, and they have lived together in her home state of Georgia as well as in Italy and North Carolina, where they currently live, so she could possibly file for divorce in any of the three states.

Sullivan said it is important for military couples to understand that the place where they got married has nothing to do with where they can get divorced. Also, he said that both spouses do not have to be able to establish residency in the state in order to file for divorce there. If the other spouse does not object to the jurisdiction then the divorce can proceed in that state.

When trying to decide where to file for divorce, Sullivan said people should consider where they vote, pay state taxes, have a banking account, were issued driver’s licenses and car titles, go to church, qualify for in-state college tuition or own property on which they pay real estate taxes, as these are all factors in establishing residency. The state where most of these events took place is the state where they should file.  He said people should also consider the cost of traveling to another state in order to file all the necessary documents, meet with lawyers and, if the case goes to trial, attend hearings. The cost of traveling and taking time off work could make any benefit gained from filing in a distant state not worth the cost of filing there.

Stephanie said they plan to file in North Carolina because it is convenient for both of them and also because she believes North Carolina’s divorce laws will benefit her the most.

“I like the fact that there is a one year wait in North Carolina because that way he can’t no-fault the divorce, sign the papers and leave me screwed,” she said. “North Carolina at least gives me time to figure out a plan. I’ll have that year separation to think about whether I’m going back to school, where I’ll live and how we’ll raise the kids.”

Though divorce laws differ from state to state, all states now offer some form of “no-fault” divorces, which means that the marriage can be ended without proving that either party did anything wrong. No explanation for why the marriage is ending is required and the two people can simply say that they are no longer compatible or that they have irreconcilable differences.

In some states no-fault is the only option for a divorce, but many states also have a fault option. In a fault divorce one person must give a reason for the divorce, such as cruelty or adultery. Sometimes the innocent party in a fault divorce is entitled to a larger share of the marital assets or more alimony. Some states also have a shorter required separation period in a fault divorce.

Mary Commander is a Norfolk, Va. lawyer who has been practicing divorce law for 25 years for mostly military clients. She said that in Virginia it is possible for a deployment to count as a legal separation period if one person in the couple began the deployment intending for the separation to be permanent. They do not have to file anything with the courts saying as much and both people do not have to intend for it to be a permanent separation.

Sullivan said that North Carolina, where he practices, typically requires a one-year legal separation before a couple can get divorced but states like Texas and Florida have no required separation period.

Commander said that it is also possible for the spouse at home to file for divorce while the other spouse is deployed, however she cautions against doing that in most situations.

“Logistically it will be very difficult to get the papers served and there are legal protections for the deployed spouse that will allow for continuances and postponements until the service member is home,” Commander said.

She also noted that a pending divorce could distract the service member from the mission, which could place him and others at greater risk.

“I’ve seen it done, but only in the rarest of circumstances,” Commander said.

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