Choosing the State in Which to File for Divorce

When one or both spouses are serving in the military, the stress on maintaining a happy marriage can be increased. In recent years, approximately 3% of married service members end their marriages annually. The rate is higher for women, about 7% compared to 2.5% for men. The divorce rate for officers is roughly 1.7%, but it rises to twice that number for enlisted troops.

For spouses serving in the military, getting a divorce involves both procedural and substantive differences from civilian divorce. In addition to state divorce laws, a variety of federal laws and military codes can impact child custody and property division issues, as well as what conduct is allowed while a divorce is pending.

For a court to have the proper and full authority to decide divorce issues, the court must have jurisdiction over the spouses involved. For civilians, that usually means they must simply file the divorce action in the state in which they currently live. For a divorce involving a military spouse, divorce is still handled in a state court, but choosing the state in which to file can be a bit more complicated.

Divorce laws differ from state to state, and the differences can impact how property is divided, how the amount of alimony is determined and other important issues. To be sure a court will have jurisdiction to legally decide all issues including the division of military retirement benefits, a divorce action should be filed in the state where the military spouse is either domiciled or is a resident.

Alternatively, the divorce can be filed in another state agreed upon by both spouses. If spouses mutually agree to have a specific state court decide divorce issues, they waive any potential objections to jurisdiction. The parties will be bound by the decisions made by the court.

If parties do not agree on the state in which to file, it is important to file in the state that serves as the domicile or residence of the military spouse. For military members, a domicile is their permanent home. It is the state the military member considers as his or her "legal" residence. This may be different from the state in which the military member lived at the time of enlistment.

For example, a person who has lived in Washington his whole life but who is attending college in Oregon decides to enlist while living in Oregon. Oregon will be considered the "home of record" for military record-keeping purposes, but Washington will be considered the domicile state.

If the person left Washington with the intent to return and live there permanently, Washington remains the domicile state. The state a person considers the domicile state can be evidenced by a variety of actions, including where the person is registered to vote, payment of state income tax, where a vehicle is registered or the address used on a federal tax return.

Most states have laws that define residency by the length of time a person is physically present in the state. Minimum periods often range between three and 12 months. Generally, a person who has established legal residency in a state will retain resident status while serving in the military outside the state.

Spouses can have different domicile states. For example, say spouse A lived in Washington before attending college in California. Spouse B lived in New Jersey before attending the same college. While attending college in California, they decide to get married during their senior years. The week after graduation, while still in California, spouse B enlists in the military. Spouse A returns home to Washington. Neither spouse established legal residency in California. Their domicile states remain Washington and New Jersey, and unless they agree or circumstances change, a divorce action would have to be filed in New Jersey to effectively determine all the issues.

While many states now allow military personnel or their spouses to file a divorce while the service member is stationed in that state even if not a legal resident, to ensure that the divorce provisions will be universally recognized, the safer practice is to file in the domicile or residence state of the military member.

A divorce action can be filed in a state court by a military or civilian spouse even while the military member is stationed outside the United States. For the overseas military member, filing in a U.S. court will be preferable in the long run even if it appears that getting a foreign divorce is cheap and quick. The military may not honor certain provisions of a foreign divorce decree, and other aspects may not be followed by U.S. courts should the service member need to seek enforcement of decree provisions after return to the U.S.

Many of the laws that will govern the outcome of a military divorce are similar to those for civilian divorce, but it is important to understand the differences. Choosing an experienced, civilian divorce attorney to represent you is fine, but you should select a lawyer who has experience dealing with military issues and requirements and knows how these can impact family law matters. If you have any questions concerning a military divorce, call the Law the Law Offices of Peter Van Aulen at (201) 845-7400 for a free initial consultation.