Active Military Duty Spouses and Illinois Divorce Law

An Overview
An Illinois divorce, involving a spouse on active military duty, creates several unique issues when compared to a typical civilian divorce. Generally, while the Illinois Marriage and Dissolution of Marriage Act (“the Act”) controls a military divorce, properly in Illinois, the provisions of the Act may be affected by applicable federal laws and rules.

Residency and Filing requirements
The filing requirements for an Illinois divorce action, where one spouse is on active military duty, are set forth in Section 401 of the Act and provides that
a divorce may be granted where one of the spouses:

  • Has been a resident of the State of Illinois for 90 days prior to commencement of the action or 90 days prior to the entry of the divorce; or
  • Has been stationed in Illinois, while a member of the military for for 90 days prior to commencement of the action or 90 days prior to the entry of the divorce.

Service of an Active Military Duty Spouse
As with a civilian divorce, a spouse on military duty must be personally served with a summons and a copy of the divorce action before an Illinois court can assert jurisdiction over the active military member.  However, applicable Federal law protects a spouse on active military duty from being “defaulted” by an Illinois divorce court from failing to respond to the divorce action.   Under the Soldiers and Sailors Civil Relief Act, a divorce proceeding may in the discretion of the Illinois court be postponed for the entire time the active military service spouse is on duty and for as much as 60 days thereafter.  This right to postpone the divorce proceedings may be specifically waived by the active duty spouse should he or she wish to complete the divorce.

Support Obligations for an Active Military Duty Spouse 
Just as in a civilian divorce, child support to be paid by a active military service spouse is governed by the Illinois child support guidelines set forth in section 505(a) of the Act.   For purposes of calculating the child support obligation of an active military spouse, Illinois law includes in that spouse’s gross income not only
military earnings paid directly to him, but also his military allotments, that is money automatically taken out of his military paycheck and sent ot someone else (for example, to a landlord for housing).  However, under federal law, the total garnishment for both child support and spousal support/maintenance from a military spouse may not exceed 60% of his or her military pay and allowances.

Visitation Rights for an Active Military Duty Spouse
Under Illinois law, a divorced spouse on active military duty, has the same right to reasonable visitation with his children as does a civilian spouse.  Since an active duty military spouse is often stationed in another state or is deployed in a foreign country, it is imperative that both parents and the courts schedules and travel arrangements for visitation between the active military spouse and his or her children accordingly.

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