Illinois divorce and the military

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Military Divorce In Illinois

Illinois divorce and the military

Outside pressures in life can often affect our most intimate relationships.  Few people have more outside pressures than the members of our nation’s military.  Members of the military have special responsibilities to our society and our society, in turn, creates special rules for the military’s members even when dealing with personal family relationships like divorce. So, how does a military divorce work in Illinois?

Jurisdiction And Military Divorce In Illinois

Being in the military means being stationed somewhere. Being stationed in Illinois means a member of the military can be subject to the laws of Illinois.

A member of the military may elect to be a resident of any particular state whether they live there or not.  Naturally, states like Texas or Florida that have no income taxes are popular options while Illinois is not.  But, the election of residency will not keep a member of the military from being divorced in Illinois if their spouse lives in Illinois or if the military member has been stationed in Illinois for 90 days.

“The court shall enter a judgment of dissolution of marriage if at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding” 750 ILCS 5/401

If the Petition For Dissolution of Marriage, is relying on the military member’s stationing in Illinois and that military member subsequently moves, a Motion To Dismiss or a Motion To Transfer Venue will likely be heard by a judge with a sympathetic ear  Illinois judges do not like to proceed with divorces where no one lives in Illinois any longer. 

Putting A Military Divorce On Hold

With the mere stroke of the President, Governor, or General’s pen, a member of the Army, Navy, Air Force, Marines or the National Guard may be called away to duty, either near or abroad. If that member of the military is simultaneously in the throws of a divorce battle, our statutes prevent that Soldier, Sailer, Airman or Marine from being caught off guard.

If an Illinois judge finds out that service member is part of a divorce in Illinois, that judge is empowered by Federal law to automatically suspend the divorce action for at least 90 days.

“At any stage before final judgment in a civil action or proceeding in which a servicemember…is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days” 50 U.S.C. App. §552(b)(1)

A service member does not need to file a motion or even an appearance to pause their Illinois divorce. A simple letter explaining what is going on to the judge will suffice.  Normally, letters to the judge are considered ex parte communication and are forbidden but this law makes a big exception for service members who cannot be expected to know particular legal concepts while they are deployed.

“An application for a stay under paragraph (1) shall include the following

(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear.

(B) A letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.” 50 U.S.C. App. §552(b)(2)

The service member can keep sending letters asking for a continuance as necessary.

“A servicemember who is granted a stay of a civil action or proceeding under subsection (b) may apply for an additional stay based on continuing material affect of military duty on the servicemember’s ability to appear.” 50 U.S.C. App. §552(d)(1)

Sooner or later, life is going to move on no matter where the service member is stationed.  In that case, the judge MUST appoint a lawyer to represent the service member’s interests.  This is the only time when a person getting an Illinois divorce can get, what is in effect, a public defender.

“If the court refuses to grant an additional stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the action or proceeding.” 50 U.S.C. App. §552(d)(2)

After the stay is granted, nothing will happen in the case without the service member’s appearance.  But, nothing means nothing.  The stay is not some kind of automatic defense to the divorce.  The stay is merely a delay.

“An application for a stay under this section does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense relating to lack of personal jurisdiction)” 50 U.S.C. App. §552(c)

What If I Have No Knowledge Of My Divorce And I’m In The Military?

An active duty service member need not fear that their spouse will claim not to know of their location, serve the active duty military member by publication and subsequently obtain a default divorce.

In Cook Cook County, Illinois, judges require Petitioners to fill out an affidavit stating that the Respondent is not in the military and explain why they believe that to be true. A default divorce will not be granted without this affidavit being completed.

Should a divorce be granted based on a false affidavit, the military member can file a Motion To Vacate The Judgment For Dissolution Of Marriage and ask the dishonest spouse to pay the military member’s attorney’s fees as a sanction.

Military Pensions and Divorce In Illinois

Military pensions and retirement benefits are marital property and may be divided as such under Illinois law.

“[A] court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” 10 U.S. Code § 1408(c)(1)

There is one big exception to this rule: a military veteran may exchange some or all of his military pension in exchange for Veteran’s Administration benefits.

If a military member does elect to take Veteran’s Administration benefits in lieu of cash retirement benefits, the former spouse cannot object to the reduction in cash benefits which he or she will receive because of that election. “the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits” Mansell v. Mansell, 490 US 581 – Supreme Court 1989

Military Divorce And Custody In Illinois

An active duty member of the military has a full-time job and must take orders from a commanding officer.  These restrictions make it very difficult for an active duty service member to be the primary parent after an Illinois divorce.  Despite an active duty military member’s national service, an Illinois court must first consider the best interests of the child when awarding parenting time and parental decision making.

That being said, an active duty military member will be granted enormous flexibility when asking for parenting time when they are not on-duty. The military member must ask for language in the Allocation of Parenting Time and Parental Responsibility to allow for period where he or she will provide notice to the other parent that they are taking leave and will exercising parenting time for the entirety of that leave.

The military parent will still have to ensure that the child continues all of their scheduled activities, school, extra-curricular activities, etc., during their parenting time.

Maintenance and Child Support In A Military Divorce In Illinois

No one joined the military to get rich. The salaries are not high. But the benefits are generous. For example, if a service person is not provided government housing, they will receive a basic allowance for housing based on their dependents (spouse and children)

Depending on which side of the case you are on, you may want to argue that these benefits are, in fact, income.

In Illinois, child support and alimony are both determined by the calculating the parties net incomes.

Before calculating net income, we must determine gross income.

“[G}ross income” means the total of all income from all sources” 750 ILCS 5050(a)(3)(A)

The counter argument is that benefits are not income, benefits are benefits.

This argument is easy for health care insurance but difficult for something that is effectively a second allotment of cash like the basic allowance for housing.

Motion For Modification Upon Discharge Of Active Duty

Parenting time can be immediately changed upon a service member’s discharge from active duty.  The discharge is a “a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(a). 

Parenting time should be set to reflect the discharged service member’s new residential location and schedule.

Likewise, a former service member’s new career will likely lead to a modification in child support and/or maintenance.

“An order for child support may be modified as follows:  (1) upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a)(1)

“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)

If you’re getting a divorce in Illinois and you’re a member of the military or your spouse is a member of the military, contact my Chicago, Illinois divorce law firm to speak with an experienced Chicago divorce attorney.