The Mechanics of Divorcing in the Military
As a rule, a divorcing spouse cannot serve a military spouse by mail, but the question may be tied to jurisdiction and the location of the military spouse.
In a military divorce, jurisdiction -- the domicile and residence requirements -- may require the assistance of a lawyer who can determine if the civilian spouse’s home state has jurisdiction over a military partner. The laws of the state with jurisdiction, which is the state where the action is filed, govern the distribution of property, spousal support and custody. So when both the military member and the civilian spouse are in the United States, the action is fairly straight forward.
Let’s say, for example, that a couple have been separated for three years now, and the wife is without hope or desire of reconciliation. During the separation, her husband disappeared and joined the Army, and now she learns that he’s been assigned to post outside the state where they were married and resided. The wife can divorce him the same way as if he were a civilian who has left their home state. She must find him, and he must be served with the divorce papers, or the complaint. This is called service of process.
However, if a spouse is stationed in Iraq, the civilian spouse cannot simply mail the complaint to him there. The complaint must come from the jurisdiction where the divorce will happen. Jurisdiction means that the courts in a state have the ability to try a case concerning particular individuals. For example, a court in New York has no jurisdiction to hear a case arising from a dispute in New Mexico if the parties have never been to New York. The dispute has nothing to do with New York, and New York has no interest in the case.
In general, when the military partner is in the United States, the serving of process and the question of jurisdiction are much easier than those cases when the military partner is overseas on an extended deployment where the protections of SCRA are more easily brought to bear. For example, when Joan in San Francisco decides to call it quits with Jim, who is serving with the Marines at Camp Pendleton, she is going to have an easier time serving process than if Jim is in the hills of Afghanistan.
Most people in the military retain their civilian domicile as their home, but this question can become more difficult when the military spouse has made frequent moves or is deployed overseas.
In general, a divorcing military couple has three choices in dealing with jurisdiction: 1) the state where the divorcing spouse resides; 2) the state where the military spouse is stationed; 3) the state where the military spouse claims legal residence, which may be where he or she plans to live after discharge or in retirement.
In this, either spouse -- the military or the civilian -- may file for divorce in any of the three states and the grounds for divorce and the property distribution are governed by the laws of the jurisdiction where the action is filed. Nine states are community property states; 41 are equitable distribution states.
Many states permit a military member or civilian spouse to file in the state where the military member is stationed. This means that, for example, it is possible for a couple to obtain a divorce even though neither of them is a permanent resident of the state. Some states reduce or eliminate the residency requirement for military divorces. So if a party lives in North Carolina, for example, which is where she and her husband married and made a home, clearly his domicile is North Carolina. On the other hand, if she lived in North Carolina, where her husband entered the military, and then, during her separation, she moved to Virginia, she can expect Virginia to have jurisdiction over her husband. In this case, there would be two likely states with jurisdiction -- North Carolina and Virginia.
In general, for most divorces, a civilian spouse must determine the service member’s domicile or state where the service member has legal residence. SCRA permits service members to keep the domicile they had when they entered the military.
There specific rules for service of process for divorcing military personnel. These rules are contained in the Code of Federal Regulations (CFR). If the civilian spouse is the appellant in the divorce action, the military spouse must be personally served with the summons and petition for a state court to have jurisdiction. If the military spouse is the respondent, the appellant may request that the military authority serve him or her, but in this case, the military spouse must consent to the service. In some cases, yes, a civilian spouse may be able to mail her husband the divorce papers. Usually this mail must be certified, return receipt requested. Individual jurisdictions, however, may have statutes prohibiting service of process by mail. Process can be served by certified mail, return receipt requested, using the APO or FPO addresses that apply to the spouse.
A civilian spouse cannot normally serve the divorce papers to a commanding officer. Military commanders have no duty or responsibility to serve process to a service member, either on or off the military base or post. Sometimes, a military official will give the service member the opportunity to accept process, upon reasonable request. In this situation, the papers would be sent to the commanding officer with a request that the papers be served. The spouse would be allowed to talk to a military legal assistance lawyer before making the decision to accept service of process.
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STATE LAW PREVAILS – State law in the jurisdiction where the action is filed controls a military divorce when the spouses must decide on grounds, property distribution and child custody, visitation and support.
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