Can You Divorce a Soldier That Is AWOL?

by Stephanie Dube Dwilson
A difficult part of divorcing an AWOL spouse is service of process.

A difficult part of divorcing an AWOL spouse is service of process.

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Divorcing a spouse who is AWOL can be difficult. AWOL ("absent without leave") means the person left the military illegally, in violation of the Uniform Code of Military Justice. If the person is AWOL for more than 30 days, he is given deserter status and a federal warrant is usually issued for his arrest. One of the most difficult parts of divorcing an AWOL spouse is the first step: serving him with a divorce petition. Service of process is tough when a spouse is missing.

Service of Process in the Military

Service of process on a member of the military who is AWOL must be done "off-post," meaning outside of a military base. This type of service is governed by state law, just like civilian service of process. If the service has to be done overseas while a soldier is AWOL, the serving party often must follow the foreign nation's service of process requirements. Trying to serve a deployed servicemember is almost impossible. In addition, because of the Servicemembers Civil Relief Act, even if a spouse is served, the case might be delayed until the deployment ends.

Service Through Civilian Channels

If the divorcing spouse knows where the servicember is, she can attempt to serve him through regular civilian channels. This includes personal service, which is the personal delivery of the divorce petition by someone other than the spouse. Service by mail is another option, which typically means mailing the divorce papers to an address where the spouse is suspected to be. Another option, substituted service, involves leaving the papers with someone else at the delivery address after several failed attempts. Unfortunately, it is unlikely that any of these methods would work. A court will likely not deem substitute service or service by mail reliable, since an AWOL soldier is not likely to be at any one place for a significant period of time. In addition, because a federal warrant has been issued for an AWOL soldier's arrest, he would have a vested interest in not allowing a process server to locate him, thus rendering personal service unsuccessful.

Service by Publication

If the divorcing spouse has no idea where the service member is, service by publication may be an option. Service by publication has a number of requirements that can vary from state to state, so the spouse should consult an attorney for details. In general, the spouse needs to use due diligence to find the service member. This can include trying to serve the military member where he was last known to live, contacting the post office and different military branches, contacting the motor vehicle department and searching telephone directories and the Internet. It might also include contacting family members and friends, former coworkers and more. If the court agrees that due diligence was done and approves service by publication, the divorcing spouse may publish legal notice of the divorce action in a local newspaper for several weeks in a row, at least once a week. The exact rules and length of time vary depending on the state.

Divorce by Default

If the AWOL service member does not respond to the published notice, the court may award the filing spouse a divorce by default. The exact rules vary by state and a spouse in this situation should contact an attorney for help. In general, a divorce by default means the divorce is granted because the service member "defaulted" on his right to respond by avoiding all attempts to reach him. The court will often need to hear the reason for ending the marriage and deal with any issues of property, children and financial support. The process is long, sometimes difficult and can be riddled with complications. For example, some states will not rule on economic issues if a spouse doesn't participate in the divorce. Other states may force the petitioning spouse to hire an attorney to represent the missing spouse.