Can a Soldier File for Divorce While in Iraq?

by Heather Frances J.D. Google
Soldiers can file for divorce while they are deployed.

Soldiers can file for divorce while they are deployed.

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A soldier’s deployment can sometimes put a strain on his relationships, and a troubled marriage might not survive. It sometimes becomes necessary for a soldier to get a divorce while he is overseas. He cannot simply get a divorce in an Iraqi court, and he isn’t physically able to access an American court. However, it is possible – though possibly difficult – for a soldier to divorce while he is deployed.

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Jurisdiction

Before he can file, the soldier must decide which state courts have jurisdiction to issue his divorce decree. Most states have laws that allow a spouse to file for divorce in their courts if at least one spouse lives in that state. For a military member, this may mean filing for divorce where his spouse lives since he is in Iraq. However, many states have special rules for military members that allow them to file in that state if the military member is stationed there. For example, if a military member is stationed in Kansas, he can file for divorce there after 60 days even if he never maintains Kansas residency. If the state where the military member is stationed allows it, he may be able to file there even while he is deployed and even if his spouse does not live there.

Attorneys

Another problem the soldier faces is his inability to physically visit the courthouse to file divorce paperwork. Even if the military member completes the divorce paperwork himself, it is difficult to finish the case without being physically present. The soldier likely will need to hire an attorney to represent him from a distance. Some states allow spouses to divorce by filing affidavits -- written statements given under oath -- instead of making personal appearances in court. However, most states will require the soldier to appear personally, especially if his spouse is fighting the divorce.

Servicemembers Civil Relief Act

Military members are eligible for protections under the Servicemembers Civil Relief Act (SCRA). Generally, SCRA protects military members who are defendants in lawsuits, not the person who initiates the action. A military member whose spouse files for divorce while he is overseas is eligible for an automatic stay – or postponement – of the divorce proceedings for at least 90 days. The judge can postpone the action even longer if the military member’s service hurts his ability to defend himself.

Withdrawing the Complaint

The military member may file for divorce based on an assumption that his spouse will agree to the divorce terms, but he may discover after he files that his spouse is no longer cooperative. If this happens, the soldier can hire an attorney to represent him, or he can withdraw his case as long as his spouse has not filed a counterclaim. Hiring an attorney may be necessary since the soldier cannot be present to represent himself. If he withdraws his case, he can usually refile it when he gets back from overseas. If the soldier's spouse has filed a counterclaim, he is the defendant in that counterclaim so he can use SCRA protections to put the proceedings on hold.