When one or both parties are in the military, divorce is governed by a combination of state and federal laws. Under the Servicemembers Civil Relief Act, military personnel are generally immune from civil actions (including actions for divorce) while on active duty. At the discretion of the court, they may also be immune for up to 60 days after their active duty service ends.
Almost all matters of family law are governed by the states, however. Divorce is no exception, and that includes divorce that involves military personnel. Federal law does cover emergency child support and military pensions, which can come up in military divorces. Other than that, though, individual states have almost exclusive authority.
In order for a state to hear any civil action (including divorce), it has to have authority to do so. This authority is known as “jurisdiction,” and is usually determined by the state in which one or both parties reside. For a person in the military, determining their state of residence is sometimes difficult. There are a few ways to decide the state in which a divorce action should be filed:
- The state in which the filing spouse resides
- The state in which the military member is stationed (if stationed in the United States)
- The state in which the military service member claims legal residence (His or her state of residence at the time of enlistment, or the state to which he or she plans to return after his or her military service ends)
The spouse in the military will have to be served with divorce papers before the action can go forward. If the spouse is stationed overseas, the other spouse can request the military to serve him or her. However, the spouse must consent to service. If they do not consent, the court will appoint a third party to attempt service, unless they are serving on a ship.