Divorce

What is a divorce?

A divorce or dissolution of marriage is a decree by a court that a valid marriage no longer exists. It leaves both parties free to remarry. The court may divide property and order spousal support, and, if children are involved, award custody and child support.

It is important to note that not all states handle divorce the same way; some states allow a divorce order to be entered and then have you work out the other issues (property and custody) later and others require that everything be resolved before a divorce can be granted.

It's no one's fault that our marriage is ending. Can we still get a divorce?

Yes. Your situation calls for a no-fault divorce. A no-fault divorce is one in which neither person blames the other for the breakdown of the marriage. There are no accusations, and no need to prove guilt or cause. Common bases for no-fault divorces include irreconcilable differences and irretrievable marriage breakdown. As those terms imply, the marriage is considered over, but the court and the relevant legal documents make no effort to assign blame. Another common basis for no-fault divorce is the parties living separately for a certain period of time, such as for six months or a year, with the intent that the separation be permanent.

Why does the law provide for no-fault divorces?

No-fault divorce is considered a relatively nonabrasive and practical way to end a marriage. The laws of no-fault divorce recognize that human relationships are complex, and that it is difficult to trace the breakdown of a marriage solely to the actions of one person.

All states offer some form of no-fault divorce, but many states also retain fault-based grounds as an alternative way of obtaining a divorce. Some spouses want the emotional release of proving fault on the part of their mates. However, courts are not very good forums for dealing with personal issues, and usually the accuser ends up less satisfied than he or she expected.

What are the grounds for obtaining a divorce based on fault?

The grounds for fault-based divorce vary somewhat from state to state. Many states permit divorce in cases involving adultery, physical cruelty, mental cruelty, attempted murder, abandonment, habitual drunkenness, use of addictive drugs, insanity, impotence, or infection of one's spouse with venereal disease. Although fault-based grounds may exist for a divorce in your case, you still might want to choose a "no fault" divorce in order to avoid, the expense, stress, and potential embarrassment that can be involved in “proving” the fault allegations to a court.

I am ready to get divorced. What should I do first?

Getting the right lawyer is often the first step. Whether the attorney you select has represented you previously or has been recommended by a friend, relative, or bar association lawyer referral service, the important thing is that you communicate well with each other and that you have confidence in his or her ability to handle your case.

What you say to your lawyer is "privileged information." This generally means that what you tell your attorney must be held in confidence unless you give permission otherwise. In addition, your attorney has the duty to: 1) allow you to make the major decisions in your case, such as contesting custody or accepting a settlement for alimony; and 2) remain open and honest with you in all aspects of your case, including your chances of success, the positives and negatives of your position, and the time and fee required.

Can I get a divorce through the legal assistance office?

No. You have to go to court to get a divorce, and you will probably need a private attorney to do that. Although you are not legally required to have an attorney, it is sometimes difficult to get a divorce without one. Even though a legal assistance attorney can't go to court for you, he or she can still help you by giving you advice on the issues and procedures involved and by preparing a separation agreement for you and your spouse to sign, if appropriate.

Where should I file for divorce?

You can’t just file for divorce anywhere. A valid and legal divorce can only be granted in the "home state" or domicile of either the husband or wife. This means the true legal home of one of the spouses. It is the place where you can vote, pay income taxes, and qualify for in-state college tuition. It does not necessarily mean the same thing as the military “home of record.” You will usually have to hire a lawyer in that place (state or county) to start the divorce proceedings.

I am stationed in North Carolina, my husband lives in California, yet we were married in Alabama. Our marriage is ending—where should we file for divorce?

Normally, a state will have jurisdiction (meaning the power to hear a case) over a divorce case if one of the parties is domiciled there. However, for military personal, this isn’t always easy. The place where you live and call home (or to the place where you return after a temporary absence) is your domicile. Factors that may impact where your “domicile” is include how long you have lived in a place, where you pay state income and property taxes, where you own real estate, where your motor vehicles are registered, which state issued your driver’s license, where your bank accounts and any safe deposit boxes are located, where you are registered to vote, and where your children attend school. If you have questions about your domicile, you should talk to a legal assistance attorney who can help you work through the issues.

Some states have specific provisions allowing military personnel assigned within the state to maintain a divorce action if they meet a period-of-residency requirement, regardless of domicile. However, these statutes aren’t always clear and you should talk to an attorney to make sure your divorce is filed in the correct state: jurisdiction is essential to a valid divorce.

I am stationed overseas. If my spouse starts divorce proceedings, will I still get notice of it?

Yes—but it can be more difficult for servicemembers than for nonservicemembers to be served with divorce documents. Traditionally, the spouse filing for divorce must have the nonfiling spouse served with notice of the divorce proceedings (notice is the formal legal notice that a suit has been filed against you). Generally, a lawyer cannot force the military to serve a servicemember, and notice by publishing in a newspaper will be considered invalid unless the servicemember’s address is unknown. Moreover, depending on the country where the servicemember is stationed, the Status of Forces Agreement between the U.S. and the host country may impose specific steps that have to be followed before service is deemed legal.

Depending on the specific facts and circumstances involved, an American court may not allow the nonservicemember spouse to proceed with a divorce action unless certain procedural requirements have been followed under the Servicemembers Civil Relief Act. A servicemember who is serving overseas may be able to temporarily stop divorce proceedings pursuant to the Servicemembers Civil Relief Act if he or she is unable to participate in the matter because of military service obligations.

Chances are that most servicemembers will be served notice of divorce proceedings through mail. This is an example of the fact that incredibly important documents can, and do, come through the mail. Don’t throw out something that looks official…read it and understand it.

My family is currently stationed overseas and my marriage is over. Can I get divorced while living overseas?

You likely can, assuming either you or your spouse can prove that you are “domiciled” (meaning you have legal residence) in that country, but the better question is should you? And for that, the short answer: it depends. A divorce order from another country may be more vulnerable to challenges down the road. Particularly if there are children involved, you must be aware that foreign custody orders are not usually enforceable in courts in the United States.

There are some issues associated with divorcing in the U.S. that maybe handled differently in another country: for example, whether a wife can resume using her maiden name upon divorce or whether alimony is an option.

There are other practical and financial considerations when deciding whether to divorce overseas including lose of base access privileges and whether the military will cover the moving expenses of the non-servicemember ex-spouse to return to the U.S.

For all these reasons (and many others) it is best to speak with a legal assistance attorney and likely, a foreign attorney with experience in family law matters in your area before filing any paper work. For some background information on divorcing in Europe or the Middle East, visit the Legal Eagle handouts prepared for the North Carolina State Bar. You can find information on making contacts with the appropriate legal professional in our Directory of Programs.

Last year I got divorced while stationed in Europe. Will that divorce be recognized when I come back home?

Although “foreign divorces” can be easier and, at the time, less expensive, they may cause you headaches when you get back stateside. First of all, if neither you nor your “ex-spouse” were considered “domiciled” in the country that granted the divorce, it is likely invalid (i.e., no good) back home. If both parties agreed to the foreign divorce proceedings and actively participated in them, then the divorce probably can’t be challenged in an American court. The same situation may apply if your former spouse fails to challenge the foreign divorce in a timely fashion (usually within a year or two).

What can I do to make a “foreign divorce” legal by American standards?

You will likely have to get a “real divorce” in the state where you have some connection (see the question above dealing with domicile for the purpose of filing a divorce petition). You may end up facing “retroactive alimony” for the time during your foreign divorce. This would mean that even if the foreign court ordered no alimony, but now the American court does, you might be forced to pay alimony for time from your foreign divorce up until now. See the Alimony section for further information on this topic.

Again, because the issues surrounding a foreign divorce can be so complicated and depend a great deal upon the state where you will be filing in the U.S. and the country where the divorce was granted, it is important to get proper legal advice for your specific situation.

We don’t have anything to fight over—no kids, no property. Can’t we just file for divorce without a lawyer?

In some states, there are simplified divorce procedures (usually called "pro se divorce" which means “do-it-yourself”). These procedures provide for standard forms in which you fill out the blanks in order to start your divorce. You will then need to serve your spouse with these papers, usually by certified mail, by sheriff, or by "process-server" (a person who delivers court papers). If your spouse doesn’t respond within a set period of time, the court will either grant your divorce or else a hearing may be held which will likely end in an uncontested divorce.

It is a good idea to ask a legal assistance attorney to determine whether your state offers a simplified divorce proceedings and whether it would make sense for your circumstances.

I am worried my spouse won’t give me a divorce. What should I do?

It is the judge who grants your divorce, not your spouse. If your spouse won’t cooperate, it may take longer and cost more, but you can still get divorced.

Is there anything I should be doing before I get divorced?

Yes, including:

• Consider cancelling any joint financial obligations, accounts, and other arrangements, such as credit cards and bank accounts. The military spouse should file a disclaimer with AAFES and other check-cashing facilities to avoid being held liable for the nonmilitary spouse’s bad checks, and he or she should put a block on DPP or similar plans at AAFES for the same reason.
• Both spouses should consider canceling powers of attorney, making new wills, and changing the beneficiaries of IRAs and life insurance policies, including SGLI.
• The military spouse must notify the housing office after the separation agreement is signed or you stop living together, whichever occurs first. The nonmilitary spouse will be asked to move out of government quarter, usually within 30 to 60 days.
• The military spouse should notify his or her commander to update military records and the nonmilitary spouse’s ID card, passport stamps, no-fee passport, ration cards, driver’s license, POV registration, and resident permit.

If I am the nonservicemember spouse and I get divorced, will my healthcare benefits be terminated?

Maybe. Under federal law, depending on how long you were married and how many years your spouse served/has served in the military, you may qualify for healthcare benefits for a period of time ranging from one year to life. In other cases, you may be able to purchase military-like-healthcare coverage for a period of time.