When something is wrong with your marriage and you are facing a military divorce while posted abroad, you can feel incredibly isolated. And, like it or not, military commands are more involved in your life than you are used to, especially when it comes to your impending divorce. It may sound very boring, but sometimes it can be useful.
While this article does not have the answer to all questions about divorce abroad, it is a good place to start to answer some basic questions. Most importantly, remember that even though the lawyers have shared information here, they are not your lawyers and you should not take this as legal advice for your particular situation.
Among the questions you can ask yourself:
- How is Divorce Abroad Different from Divorce While Living in the United States?
- Who has jurisdiction?
- What if you want to leave your duty station abroad before the divorce is final?
- What changes if you have children?
- How does the SCRA apply to divorce?
- What should you look for in a lawyer?
Divorce in the military is measured differently from overall divorce rates in the United States. The military divorce rate is a comparison of the number of people married at the start of the year and the number of people who reported divorced at the end of the year. In 2019, this rate was 3%.
Do you have to get divorced while living abroad?
Divorce abroad is much more complicated. Sometimes so much more complicated that couples can wait until they return to the United States to begin the procedure.
“It may be logistically impossible to facilitate divorce while abroad due to the complex demands of litigation in local state courts,” noted Sean Timmons, partner at Tully Rinckey Attorneys and Counselors at Law, a firm with offices in the United States. in an email to Military.com.
In addition to limited legal resources abroad and living physically away from your family and support system, complications continue when you consider custody agreements, mandatory separation periods, finding a lawyer. and determining jurisdiction. That’s not to say that you shouldn’t get a divorce while living abroad, just that there may be additional layers to the process.
Who has jurisdiction?
When living in the United States, you can file for divorce in the state they live in – even if you got married in another state – as long as you meet the residency requirements. Typically, you file in the last state in the United States where the parties resided for more than 91 days, said Melissa C. Guggisberg, former military wife and licensed lawyer in Colorado.
But, like many things, divorce can be more complicated when you are a military spouse, because you moved and then moved out of the country. Another determining factor is the member’s domicile or state of origin. Guggisberg said the state of origin is a good place to start if parties can’t agree on which state to file in.
Again, when children are involved, this further complicates matters.
“Children are generally expected to reside in the appropriate jurisdiction for 182 days prior to filing, so that state can enter custody and parenting orders,” Guggisberg said.
Ideally, parents can agree on an appropriate state in which to file, but if the member is filing without the spouse’s knowledge, it may be necessary to assess jurisdiction.
What should you do first?
“I have advised, when there is an ongoing divorce and the parties are abroad, that the spouse consider sharing with the command. Not in a malicious way, but in a way that allows them to tap in the available resources and to have the opportunity to return home, “said Guggisberg.
The Early Return of Dependents (EDR) process is used in many situations, and a pending divorce could be one of them. An ERD is usually approved by the garrison commander, provided it is level O-6 or above. The service member must demonstrate a valid need for dependents to return early, that the problem arose after they moved overseas and that local resources cannot resolve the problem, according to the information on this sheet. .
This information from 7e JMTC Legal Aid (Germany) says that if the service member refuses to submit to an ERD, the spouse can do so – which can be helpful in the context of an ongoing divorce.
If safety is a concern, the spouse should do whatever is necessary to be safe, which may mean not waiting for the ERD process or alerting the command of a dangerous situation.
Another layer of potential complications exists if children are involved. If you decide not to wait for an approved DRE, a basic notice of intent to leave the country and take the children is required, Guggisberg said.
“And that’s just because you don’t want there to be a perception that they were trying to run away with the kids or hide the kids from the military. What if there’s an open door of contact [with the unit], so it’s easy to tell, that wasn’t what they were doing. But again, if there are issues of safety and domestic violence, there is usually wiggle room, at least under Colorado law, ”Guggisberg said.
There may be different views on some of these things depending on the law of each state. “And obviously one of the complications is that divorce and divorce law are dictated by the jurisdiction of each state,” Guggisberg said. “But of course there are overarching federal issues that come into play when dealing with the military.”
If the military spouse cannot leave the country for financial or logistical reasons, this does not mean that the divorce proceedings cannot continue. Guggisberg said many jurisdictions allow you to appear remotely, use e-filing options, and allow both parties to access the court system electronically – which makes her less of a concern today than it does. was not ten years ago.
What about SCRA?
The Servicemembers Civil Relief Act (SCRA), which was originally enacted to ease the financial burden on service members, also offers some protection during civil lawsuits or civil matters, including divorce, Guggisberg says, but it is rarely used as a reason not to proceed. with divorce.
SCRA, Guggisberg explained, is designed to prevent the service member from not noticing that he or she is suddenly divorced – which could happen if not served properly and therefore not responding in a timely manner. that makes the divorce seem unchallenged. And so, if proper notice can be provided and the service member can participate in some way, even if it is from a distance, then many judges will go ahead and not allow SCRA to trigger a delay.
Still, if your service member is geobaching, SCRA could delay your divorce proceedings until your service member comes to the United States, Timmons said in an email.
“If the service member is overseas under the SCRA, the service member may request that the proceedings be delayed until they can physically appear in court to witness the proceedings,” a- he declared. “SCRA relief can significantly delay proceedings. “
What kind of lawyer do you need?
When facing a divorce, you’ll need representation, and despite claims that the first person to go to JAG gets legal advice, that’s not exactly the case. You’re going to want your own lawyer, one who specializes in divorce and understands the military. One place to find a lawyer would be the Military Spouse JD Network’s public directory.
“One of the biggest values I have in my clientele is that I can talk to them militarily and they love being able to come in and use their acronyms, talk about military time and talk about their MOS,” Guggisberg said. “I think a basic understanding of the military is definitely something a spouse or military person wants to consider when hiring a lawyer.”
Another thing to keep in mind is: Does your personality match that of your lawyer? Do they understand your ultimate goals? Guggisberg describes herself as a problem solver, not a “shark that will take your mate for all his worth,” and that’s an important thing to know about your lawyer.
“I encourage anyone interviewing a lawyer to consider whether it is appropriate for them to be open about what they are looking for and what their goals are and to be open about their needs so that the lawyer can then assess these compatibilities. “Said Guggisberg.
Divorce is complicated at the best of times. Surprises, custody battles and life abroad are often not the best of times. By finding a competent lawyer, knowing your options as a military spouse living overseas, and determining what to expect from the situation, you will be well on your way to reaching a resolution.
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