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How to Navigate a Military Divorce While Stationed Overseas

September 28, 2021

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When something goes wrong in your marriage and you’re facing a military divorce while stationed overseas, you may feel incredibly isolated. And, like it or not, military commands are more involved in your life than you may be used to — especially when it comes to your pending divorce. It may seem really annoying, but sometimes it can be helpful.

While this article doesn’t have the answer to every single divorce overseas question, it’s a good starting point to answer some basic ones. Most importantly, remember that while attorneys have shared information here, they aren’t your attorneys, and you should not take this as legal advice for your particular situation.

Among the questions you may have are:

Divorce in the military is measured differently than overall divorce rates in the U.S. The divorce rate for the military is a comparison of how many people were married at the beginning of the year and how many people reported getting divorced by the end of the year. In 2019, that rate was 3%.

Should you divorce while living overseas?

Divorce overseas is infinitely more complicated. Sometimes so much more complicated that couples may wait until they move back to the states to start the proceedings.

“It can be logistically impracticable to facilitate divorce while stationed overseas due to the complex requirements of litigation in local state-based courts,” Sean Timmons, a partner with Tully Rinckey Attorneys and Counselors at Law, a firm with offices throughout the U.S., noted in an email to Military.com.

On top of limited legal resources overseas, and physically living far away from your family and support system, the complications continue when you look at custody agreements, mandatory separation times, finding an attorney and determining jurisdiction. That isn’t to say you shouldn’t get divorced while living overseas, just that there may be additional layers to the proceedings.

Who has jurisdiction?

When living stateside, one can file for divorce in the state they are living in — even if you were married in a different state — as long as you meet the residency requirements. Typically, you file in the last state in the U.S. that the parties resided in for longer than 91 days, said Melissa C. Guggisberg, a former military spouse and attorney licensed in Colorado.

But, like many things, divorce can be more complicated when you’re a military spouse, because you’ve moved and then relocated out of the country. Another determining factor is the service member’s home of record or home state. Guggisberg said the home state is a good starting point if the parties can’t agree on the state in which they should file.

Again, when children are involved, this further complicates it.

“The children are typically supposed to reside in the appropriate jurisdiction for 182 days prior to the filing, in order for that state to be able to enter custody and parenting orders,” Guggisberg said.

Ideally, the parents can agree on an appropriate state in which to file, but if the service member files without the spouse’s knowledge, there may have to be an evaluation of the jurisdiction.

What should you do first?

“I have advised when there is a pending divorce, and the parties are overseas, that the spouse considers sharing with command. Not in a malicious way, but in a way that allows them to tap into available resources and get the ability to travel home,” Guggisberg said.

The Early Return of Dependents (ERD) process is utilized in many situations, and a pending divorce could be one of those. An ERD generally is approved by the garrison commander, provided they are an O-6 or above. The service member must show a valid need for their dependents to return early, that the problem occurred after they moved overseas and that local resources cannot solve the problem, according to information on this sheet.

This information from 7th JMTC Legal Assistance (Germany) indicates that if the service member refuses to submit for an ERD, then the spouse can do it — which may be helpful under a pending divorce.

If safety is a concern, then the spouse should do whatever is necessary to be safe, which may mean not waiting for the ERD process or alerting the command to a dangerous situation.

Another layer of potential complications exists if children are involved. If you decide not to wait for an approved ERD, a basic notice of intention 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 abscond with the children or hide the children from the service member. And if there’s an open door of contact [with the unit], then it’s easy to say, that was not what they were doing. But again, if there are safety concerns and domestic violence, there’s usually some wiggle room, at least under Colorado law,” Guggisberg said.

There may be varying viewpoints on some of these things based on the individual state law. “And obviously one of the complications is that divorce and divorce law is dictated by the individual state jurisdiction,’’ Guggisberg said. “But of course, there are overarching federal issues that come into play when you’re dealing with service members.”

If the military spouse cannot leave the country for financial or logistical reasons, that doesn’t mean the divorce proceedings cannot proceed. Guggisberg said a lot of jurisdictions allow you to appear remotely, use e-filing options and allow both sides to access the court system electronically — which makes it less of a concern now than it was a decade ago.

What about the SCRA?

The Servicemembers Civil Relief Act (SCRA), which was enacted originally to ease the financial burden on service members, also provides some protection during civil ligation or civil cases, which includes divorce, Guggisberg says, but it’s rarely used as a reason not to proceed with the divorce.

The SCRA, Guggisberg further explained, is designed to protect the service member from not having noticed that all of a sudden they’re divorced — which could happen if they are not served properly and therefore do not respond in a timely manner, making the divorce appear uncontested. And so if proper notice can be provided and the service member can participate in some manner, even if it’s remotely, then a lot of judges will go forward and will not allow the SCRA to trigger delay.

Still, if your service member is geobaching, SCRA could cause your divorce proceedings to be delayed until your service member comes stateside, Timmons said in an email.

“If the service member is overseas under the SCRA, the service member can ask for proceedings to be delayed until they can physically appear in court to attend proceedings,” he said. “SCRA relief can delay proceedings significantly.”

What kind of lawyer do you need?

When faced with divorce, you’ll want representation, and despite the claims that the first person who gets to JAG gets legal advice, that’s not exactly the case. You’re going to want your own attorney, one who specializes in divorce and one who understands the military. One place to find an attorney would be the Military Spouse JD Network’s public directory.

“One of the greatest values that I have in my client base is, I can speak military to them and they love being able to come in and use their acronyms and talk military time and talk about their MOS,” Guggisberg said. “I think a basic understanding of the military is definitely something that the spouse or service member wants to consider in hiring counsel.”

Another thing to keep in mind is, does your personality match that of your attorney? Do they understand your ultimate goals? Guggisberg describes herself as a problem solver, not as a “shark who’s going to take your spouse for all their worth,” and that’s an important thing to know about your attorney.

“I encourage anybody who’s interviewing a lawyer to determine if it’s the right fit for them to be open about what it is they’re looking for and what their goals are and be open about what their needs are so that the lawyer can then assess those compatibilities,” Guggisberg said.

Divorce is complicated under the best of situations. Surprises, custody battles and living overseas do not often make for the best of situations. By finding a knowledgeable lawyer, knowing your options as a military spouse living overseas and determining what you want from the situation, you’ll be well on your way to a resolution.

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