Military & Divorce Jurisdiction

By Heather Frances J.D.

Like civilians, military members must divorce in state courts since there are no military courts with the ability to decide family law issues like divorce. However, military divorces have unique characteristics that can make it difficult to determine which court has jurisdiction, or legal authority, over a particular divorce. If a court does not have jurisdiction, it cannot issue legal orders to address items like child custody or property division, so it's possible that several courts have jurisdiction over different issues in the same divorce. For example, one court could have jurisdiction over the divorce while another has jurisdiction over the child custody and support issues.

Complexities of Military Divorce

Before a court can rule on any issue, it must have jurisdiction over the issue itself and the persons involved. A court’s jurisdictional authority typically comes from state law, but military divorces also involve federal laws. For example, military retirement pay is subject to federal laws, but federal law gives state courts jurisdiction to divide this retirement pay as part of a divorce. Federal law does not tell the courts how to divide it, instead simply giving them the ability to divide it in a manner consistent with their state’s laws.

Where to File

Military members and their spouses often have several states where they can file for divorce. Frequently, states permit residents to file for divorce in their courts, but military members may not be true residents of the state where they live. For example, a military member could be a resident of State A, married in State B, and stationed in State C. His spouse could be living in State D, with or without the couple’s children. Typically, the military member or his spouse can file for divorce in the state where the military member resides when he is not on duty, the state where he is stationed, or the state where his spouse resides.

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Children

Though several states may have jurisdiction over the divorce itself, a court’s authority over the couple’s children is a different matter. The Uniform Child Custody Jurisdiction and Enforcement Act, which has been adopted by every state except Massachusetts, governs which state courts have jurisdiction over actions involving a child, including determinations of child custody in divorce cases. Under most circumstances, the state where the children live has jurisdiction over them. However, this type of jurisdiction doesn’t become effective until the children have lived there for six months. Prior to six months, jurisdiction may be more complicated since it depends on a variety of factors.

Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act (SCRA) provides certain protections for military members, including procedural safeguards for divorce cases. If the military member cannot properly defend himself against a lawsuit -- including a divorce case -- because of his military duty, he is entitled to postpone the case for at least 90 days by submitting a letter to the judge. He can also request more extensions. To avoid delays, the military spouse must effectively consent to the divorce going forward.

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How to Get a Divorce While in the Military: Who Keeps the Kids?
 

References

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