Where a Person Files Matters

Civilians almost always file for divorce where they live, but a military couple has a number of choices to make about the place to file.

In the military community, a couple could be from one state, married in a second state, live in a third state and own property in a fourth state. They may have also recently been moved by the military to the state where they live but not lived there long enough to establish residency.

Having a choice in where to file is one of the big differences between a military and a cilvilian divorce. Laws vary from one state to another and where to file can make a big difference in how a divorce proceeds and the parties’ situations after it is final. “It matters a lot,” said Mark Sullivan, a Raleigh, North Carolina, lawyer who is very familiar with the issues involved in military divorces.

For example, Sullivan said that Puerto Rican divorce courts do not divide a military pension between the service member and the spouse.  Sullivan is the author of a guide for lawyers called The Military Divorce Handbook and he has also written several pamphlets on military divorce. He often lectures other lawyers, including military lawyers, on issues surrounding military divorces.

Military divorces, when one or both spouses are active duty, National Guard or Reservists, are basically the same as civilian divorces, but there are a few important differences. “It [the place of filing] needs to be a place where you have actually lived,” Sullivan said, “not just somewhere you claim for tax purposes.” Sullivan notes that the official home of record that a service member claims often has nothing to do with which state will have jurisdiction over a divorce.

As in the case of a civilian divorce, military couples must understand that the place where they married has nothing to do with where they get divorced. Both spouses do not have to be able to establish residency in a jurisdiction in order to file for divorce there. If the other spouse does not object to the jurisdiction then the divorce can proceed in that state.

When trying to decide where to file for divorce, Sullivan says people should consider the place they vote, pay state taxes, have a banking account, and a driver’s license and car titles, go to church, qualify for in-state college tuition or own property on which they pay real estate taxes, as these are all factors in establishing residency. “The state where most of these events took place is the state where they should file,” Sullivan says.

He said people should also consider the cost of traveling to another state in order to file all the necessary documents, meet with lawyers and, if the case goes to trial, attend hearings. The cost of traveling and taking time off work could make any benefit gained from filing in a distant state not worth the cost of filing there.

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