How Do I Divorce My Military Spouse Who Is Overseas?
The military divorce process is similar to other divorces that do not involve overseas military personnel. For example, you will establish grounds for a divorce, submit a divorce complaint, divide marital assets, or determine custody of your children. However, military divorces come with key differences in how you serve your overseas spouse, the applicable divorce timeline, and the property division related to military retirement benefits.
Divorcing your military spouse stationed overseas may not prove easy, but certain laws protect both parties during these cases. Working with an military divorce attorney can help you ensure that you know how to handle this process and understand all applicable rules.
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Work With an Attorney Who Understands Military Divorce
Military divorce has special considerations. Some law firms do not handle them, and others have little experience. You want to choose a lawyer who knows the rules, understands them, and frequently works within the confines of these rules. You do not want your attorney to figure out how this works as they go.
Because the military deployed your spouse overseas, you likely face immediate complications in your case. First, your attorney needs to consider the correct jurisdiction for your divorce before they can start on the case.
Alabama law only allows you to file for divorce if you first live in an Alabama county for at least six months. If your partner did not live in the county during that time, you must show that you did.
In some cases, you could have multiple options for jurisdiction, including:
- Your current county
- Where the military stationed your spouse
If you got married in the United States, you should not consider a divorce in a foreign country. Even if you previously lived overseas with your partner, you should file in the United States. The U.S. military will not recognize and enforce divorces, parenting plans, child support orders, or other decrees from a foreign court.
Your lawyer can help you understand your best legal path for filing a military divorce. Your lawyer can also address any other questions about divorcing your military spouse.
This could include:
- How long will it take me to get a divorce?
- Could my spouse get custody of our children?
- Can I keep the housing allowance or other military benefits?
- What happens to military benefits during the divorce process?
- Do I get any portion of my spouse’s retirement benefits?
- Can I get alimony?
Divorce lawyers in Alabama offer confidential case evaluations. If you have concerns about the divorce process but do not yet plan to file, you can still call for an evaluation. Unless you tell them, no one will know you met with a divorce lawyer. Your attorney may help you decide when to file and move forward with your divorce.
Preparing and Filing the Military Divorce Complaint
Many unique considerations affect military marriage with an overseas spouse, but establishing the divorce complaint will be similar to those filed in civilian divorces. Your attorney can discuss all the potentially contested issues with you, guide you through making decisions about each one, and write a divorce complaint based on them.
You can file either no-fault or fault-based divorce in Alabama. This is one of the first decisions you must make about your divorce. They may discuss the pros and cons of either type of divorce with you.
Under Alabama law, the grounds for a no-fault divorce include:
- Irretrievable breakdown of the marriage
No-fault divorces are common. If you pursue a fault-based divorce, your complaint must include the grounds and the allegations against your spouse that support those grounds. You must prove those grounds for the court to grant your divorce. Filing a fault-based divorce could affect other matters in the divorce. For instance, if your partner abused you or your children, the court may consider this when arranging child custody and visitation.
Fault-based grounds for divorce include:
- An incapacitated spouse
- Alcoholism or drug addiction
- Mental illness requiring extended hospitalization
- Imprisonment for significant crimes
- Previous sexual crimes
- Hidden pregnancy or a child born during marriage without the father’s knowledge
You should note that adultery remains illegal in the military, and filing a fault-based divorce and claiming adultery could cause significant issues for your spouse serving active duty. Your lawyer should know enough about this topic to discuss it openly with you, offer advice, and help you decide your best option going forward.
In addition to deciding the grounds, your attorney may walk you through the primary legal matters covered in a divorce complaint and the divorce process. You must seek your preferred outcome based on your needs, Alabama law, and other factors laid out by your lawyer. These legal matters include:
Alabama law requires equitable distribution of property, including marital assets and debts. Equitable means fair, not equal. Marital assets may include the couple’s vehicles, purchased home, bank accounts, investments, and other assets.
Not all property is considered shared marital property. Non-marital assets include personal property that reverts to the former spouse’s possession after divorce.
In a military divorce, this means the military spouse retains their Basic Allowance for Housing (BAH) or Overseas Housing Allowance (OHA) and Basic Allowance for Subsistence (BAS).
You can get alimony, also called spousal support, from a spouse in Alabama. However, these payments do not last permanently. This period allows the spouse previously responsible for caring for the children and the home to finish their education, find a job, and take other steps to become independent of their partner. Your attorney can explain if you could get alimony in your case.
Child Custody and Parenting Time
In Alabama, the courts consider joint and shared physical custody the norm. This means the parents share in the decision-making for their children, and they both see their children frequently. However, an overseas deployment could affect this. Parents stationed overseas may receive custody and parenting time. Still, the judge will likely want to see details about what happens during deployment and how their plan reverts to normal when the parent returns.
Working with a divorce attorney well-versed in military divorces makes putting these plans into words easier. They know what the court looks for to approve the custody plan and visitation despite one parent’s frequent travel or living elsewhere for work.
Once you determine your desired plans for custody and other legal matters, your legal team can help you submit the complaint. This petition for divorce outlines the grounds and all requests related to alimony, property division, custody, child support, and more.
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Serving Your Overseas Spouse and Navigating the Divorce Process
One of the top questions we get about military divorces is: “How can I serve my military spouse stationed overseas?” This proves more challenging than in civilian divorces, where you could use a process server to deliver the necessary paperwork across town. Still, you have options to manage this essential step in the divorce process.
Attorneys well-versed in military divorces can navigate these options for you with ease, allowing you to receive the documents through:
- Certified mail
- The proper command channels
- A process server
- Another option available in their branch of the armed forces or the area where they live
You must understand that the average timelines do not necessarily apply in military divorces. Unfortunately, you will need to exercise some patience throughout this process. Legal protections allow for different divorce timelines when one spouse is overseas.
Under the Servicemembers Civil Relief Act (SCRA), active-duty personnel have at least an additional 90 days to respond to a divorce petition if the military deploys them when you serve them. They can receive an extension while the service member completes their deployment, returns home, hires a lawyer, and can respond.
Once your spouse returns to the United States, the process should move through the court system like any other divorce. Your spouse may not contest the grounds or any of your requests, or they could disagree with all of them. Your lawyer can help you through the necessary steps of trying to reach agreements, including mediation if needed. Then, they can represent you before the judge if your case goes to trial.
Having One Spouse in the Military Affects Property Division and Custody
Military divorces differ from those involving civilians in several ways. These include:
Property Division and the Family Home
In a civilian divorce, couples can work out when and how they move out of the family home (unless the court intervenes).
Different rules apply to housing matters in some military divorces. If you are a non-military spouse and live in on-base housing, you generally have a short window to relocate after your divorce. Your attorney can identify all assets and debts and help you decide how you want to split them equitably.
Child Custody and Support
While military service and frequent deployment do not always affect how the courts award custody, visitation, and child support, it often plays a role. The judge wants to keep the child’s normal routines, school, and everyday care as steady as possible. In addition, they look to the child’s history to determine the future.
When one parent provides childcare while the other works overseas, the parent at home will most likely retain the status as the primary caregiver for the child. This is not a hard and fast rule, though. Exceptions do occur.
Other considerations affect child custody. For instance, if one parent lives in another country, the judge will consider their capacity to make a major decision, act during an emergency, or have visitation. The divorce decree and parenting plan should address decision-making during deployment and how this affects visitation and support.
Military Benefits and Military Divorce
During your divorce, you retain all military benefits you currently receive. This includes healthcare coverage, access to the base and commissary, and more. Your children will also keep their benefits after your divorce.
The Uniformed Services Former Spouses Protection Act (USFSPA) governs how to share benefits following the divorce. This law allows the courts to award a former spouse 50 to 65 percent of the service member’s retirement pay. However, this often becomes a complex calculation. You may hear it called the 20/20/20 rule.
This calculation considers:
- The length of the marriage
- The length of military service
- The overlap in service and marriage
If the marriage lasted 20 years, the member’s service lasted 20 years, and the overlap was 20 years, the spouse can receive the same benefits as if they were married—50 percent of the retirement if they have no children and 65 percent with children. However, if those years of service, the length of the marriage, and the overlap time are lower than 20 years, that percentage decreases.
A divorce attorney who handles military divorce knows how to perform these calculations and determine how much you could recover in your divorce.
Get Legal Help With Your Military Divorce Today
Most Alabama divorce attorneys who handle military divorces provide confidential, no-obligation evaluations for those considering divorcing a deployed spouse. This allows you to get the information and answers you need before you decide to move forward and file.
Many clients seeking a military divorce live on or near one of Alabama’s many military installments. Others live near their families or moved to Alabama because of their loved one’s deployment.
Some bases and facilities in Alabama include:
- Maxwell-Gunter Air Force Base
- Alabama Air National Guard’s 187th Fighter Group and Army Aviation Support Facility
- Anniston Army Depot
- U.S. Army Fort Rucker
- U.S. Army Aviation and Missile Command (AMCOM) and Redstone Arsenal (RSA)
- Aviation Training Center Coast Guard Base (ATC)
If you have questions, concerns, or want more information about getting a divorce from an active-duty military member currently stationed overseas, connect with an military divorce attorney’s team today. You may want someone knowledgeable to guide you through this process from start to finish.