Any divorce can be difficult on the parties involved. A military divorce often adds layers of complexity due to considerations regarding jurisdiction (not typically a question in most civilian divorce proceedings) and filing timelines, especially the deadlines that apply to post-judgment motions and divorce appeals. While timelines for appealing a divorce will be set by the state in which the divorce is granted, some provisions specific to military service can considerably extend the time it takes to move through the appeals process for a military divorce.
Members of the United States military stationed in Illinois, as well as their civilian spouses and exes, may find it beneficial to speak with an attorney in their area who can provide tailored advice specific to their individual circumstances. Reach out to the experienced military divorce legal team at Johnson O’Keefe by calling our Chicago office at (312) 319-4444 today to set up your consultation.
Military Divorce Jurisdiction
One of the most common frustrations experienced early in the process of getting a divorce in the military is actually a consideration that is basic for most civilians: determining where to file. While it is true that most states, including Illinois, impose residency requirements for divorce that can lead to filing delays for individuals who have recently moved, in most cases the partner who decides to file for divorce can do so by submitting the necessary paperwork (this may be termed either a complaint or a petition, depending on the state) and paying the filing fee (which also varies by state) at the nearest courthouse that handles family law cases (often a county courthouse, but in some states family cases may instead by heard by the district or even municipal courts, so it is always a good idea to check local guidelines as you prepare).
In a military divorce, however, there are a number of possible complications that may influence which court has jurisdiction over the divorce, where the paperwork may be filed, and ultimately which set of laws will govern the divorce proceedings. Some of the most commonly applicable considerations include:
- Whether both spouses are in the military
- If only one spouse is in the military, which spouse is filing for divorce
- Whether either spouse is currently serving overseas
The filing jurisdiction can have a number of implications on how a military divorce will be handled.
If Both Partners Are Currently Overseas
Married individuals who are serving in the United States military do not usually bring their civilian spouses overseas unless the service member receives a long-term assignment at an overseas military base, so in military-civilian divorces it is relatively uncommon for both spouses to be overseas at the same time. The situation may be more likely to arise when both partners are in the military (whether they are in the same branch or serving in separate branches), as they may be deployed at the same time.
If both spouses are overseas when the marriage breaks down, then some local jurisdictions may accept the legal filings for a divorce under their own laws – but Military OneSource cautions against taking this route in most situations, as a divorce filed with a foreign court may not be recognized in all U.S. states. Instead, service members stationed overseas, and their civilian spouses, can file in the state where they themselves claim legal residency (typically this will be the state in which the individual filing for divorce has the right to vote). If one of the spouses is a civilian, then either spouse may also file in the state where the civilian spouse claims legal residency (this will usually be the state in which the nonmilitary spouse has the right to vote, regardless of the service member’s home state).
If the Service Member Is Stationed on a Domestic Military Base
When both spouses are physically located within the United States at the time of filing, the possible complication of filing with a foreign court disappears from the equation, but the partner filing for divorce will still likely have some options. In this situation, either spouse may file for divorce in any of the following:
- The state in which the service member’s current base is located
- The state in which the service member claims legal residency
- The state in which the civilian spouse (if any) claims legal residency
The state of Illinois is home to eight United States military bases, so military divorces are relatively common in this state. If you are filing for divorce in this state, or navigating the divorce process in Illinois because your spouse has filed here, an experienced family law attorney with Johnson O’Keefe may be able to guide you through the process for a military divorce in Illinois.
Navigating Appeals in a Military Divorce
Broadly speaking, the appeals process for a military divorce filed with a court anywhere within the United States will follow the rules of procedure and relevant divorce laws of the state in which the divorce was originally filed. However, there are a few considerations, notably certain provisions of the Servicemembers’ Civil Relief Act (SCRA) that allow individuals serving in the United States military to file motions for relief or stay of proceedings while they are deployed, that can introduce additional variables beyond the usual requirements of each state’s laws.
Effect of Appeals on Illinois Divorce
Under 750 ILCS 5/413, an Illinois divorce is considered “final” – that is, the marriage has been dissolved and both of the former spouses are free to remarry if they wish – as soon as the judgment has been entered by the court. A divorce appeal that does not challenge the grounds of the divorce will not be taken to invalidate the dissolution of the marriage, or put a “stay” (a legal hold) on either party’s right to remarry, even if an appeal of one or several of the terms set out in the divorce decree (such as orders regarding the payment of spousal support or child custody) is pending. Instead, the orders set forth by the judge in an Illinois divorce case are treated as individually separable from one another and from the decree or settlement as a whole, meaning that unless an appeal directly challenges the legal grounds for the dissolution itself, both of the former spouses can to some extent “move on,” in spite of pending appeals or motions to modify judgment.
Timelines for Appeals in a Military Divorce
In most cases, the window of opportunity for appealing any element of a divorce decree is fairly limited; in Illinois, an appellant (the party filing the appeal) usually has 30 days from the date the court’s judgment is entered to file a Notice of Appeal with the appellate court in the appropriate jurisdiction (note that once the jurisdiction for a divorce is “set” by the initial filing, neither party can change it at will – a divorce granted in Illinois will need to be appealed in Illinois, regardless of what options either spouse had when deciding where to file the original complaint or petition). Filing the notice of appeal then sets off a series of further deadlines that apply, usually in alternating sequence, to both appellant and appellee (the other party in the case being appealed).
Military Divorce Timelines and the SCRA
In a military divorce, however, certain provisions of the SCRA may create the conditions under which a former spouse serving in the military (but not a civilian former partner) may be able to “slow down” the proceedings, according to Stateside Legal. These potential slow-downs are not designed to allow individuals in military service to frustrate their exes from a distance by drawing out the timeline for court proceedings; rather, they were established by the United States Congress as part of a broader program to help prevent members of the United States military from being inadvertently denied their rights to participate in domestic legal proceedings due to the requirements imposed on them by their duties, especially during long-term deployments.
Military Stay on Proceedings in a Divorce Appeal
Individuals serving in the military may request a “stay” on the time-sensitive steps of the divorce appeals process if their obligations while on active duty make it difficult or impossible for them to comply with scheduled court dates and responsive filings. Generally speaking, each “stay” is granted for at least 90 days, and a judge may grant further extensions if the party on active duty can show that their military service obligations continue to prevent them from enjoying the same opportunities for legal remedy and defense as would a civilian in a similar situation. These stays are not intended to be indefinite, however, and it may be appropriate to seek out legal guidance tailored to your specific situation.
Speak With an Experienced Military Divorce Lawyer in Illinois
Appeals can be tricky to navigate in any divorce. Appealing a judge’s orders in a military divorce can bring special considerations to bear, particularly if the former spouse serving in the military is deployed overseas. A divorce granted by an Illinois family court will typically need to be handled through the Illinois courts as well, and managed according to the Illinois Rules of Civil Procedure – but in certain situations federal rules designed to protect members of the United States military from suffering unnecessary legal repercussions for fulfilling their sworn duties may bring additional options for stays or continuances into play in a military divorce. An experienced Cook County divorce lawyer from Johnson O’Keefe may be able to advise you further in a private consultation, in person or by phone. Book now by calling (312) 319-4444.