Military Divorce in Illinois

Can you file for divorce in Illinois if you are stationed here?

Yes. An Illinois court can enter a divorce judgment if one spouse lived in Illinois, or was stationed here in the armed services, when the case began (750 ILCS 5/401(a)). That residence or military presence must have lasted 90 days before the case began or before the court's finding. The ground is the same as in any Illinois divorce: irreconcilable differences that have caused the irretrievable breakdown of the marriage.

The case is filed in the county where either spouse resides, although papers can be served in any county (750 ILCS 5/104). If neither spouse lives in the county where the case is filed, the petitioner must file a written motion about venue with the first pleading. If you live in Lake County, see our Lake County divorce page; for the general steps, see how to get a divorce in Illinois.

Being able to file in Illinois does not settle every issue. Dividing military retired pay has its own federal jurisdiction rule, explained below.

The Servicemembers Civil Relief Act in a divorce

The federal Servicemembers Civil Relief Act can pause a divorce or custody case when military duty prevents a servicemember from appearing. It also adds protections before any default judgment. It applies to any civil action or proceeding, including a child custody proceeding (50 U.S.C. 3932(a)).

The 90-day stay

A servicemember who is in military service, or within 90 days after release from it, and who has received notice of the case may apply for a stay. At any stage before final judgment, the court shall, on the servicemember's application, stay the case for at least 90 days if the application includes two things (3932(b)):

• a letter or other communication stating how current military duty materially affects the servicemember's ability to appear, and a date when the servicemember will be available; and
• a letter or other communication from the commanding officer stating that current military duty prevents appearance and that military leave is not authorized.

Applying for a stay is not an appearance for jurisdictional purposes and does not waive defenses (3932(c)). A servicemember may apply for an additional stay; if the court refuses one, it shall appoint counsel to represent the servicemember (3932(d)). A servicemember who applies for a stay and is unsuccessful may not then seek the default judgment protections described below (3932(e)).

Default judgments and the military affidavit

Before entering a default judgment, the court shall require the plaintiff to file an affidavit (50 U.S.C. 3931(b)(1)). It must state whether or not the defendant is in military service, with facts to support it. If it appears the defendant is in military service, the court may not enter judgment until it appoints an attorney to represent the defendant (3931(b)(2)).

A default judgment entered against a servicemember during service, or within 60 days after it, can be reopened on application. Military service must have materially affected the servicemember's defense, and there must be a meritorious or legal defense. The application must be filed no later than 90 days after release from service (3931(g)). See how to serve divorce papers in Illinois and what happens if a spouse will not sign.

Dividing military retired pay

An Illinois court can treat military retired pay as marital property, within federal limits. Federal law lets a court treat disposable retired pay as property of the member alone or of the member and spouse (10 U.S.C. 1408(c)(1)). The court follows its own state's law in doing so.

Jurisdiction to divide retired pay

The court may divide disposable retired pay only if it has jurisdiction over the member in one of three ways (1408(c)(4)):

• the member's residence in the court's territory, other than because of military assignment;
• the member's domicile there; or
• the member's consent to the court's jurisdiction.

A member stationed in Illinois who lives here only because of military assignment and is domiciled elsewhere may not meet that test unless the member consents. This question should be settled before the case is filed.

The 10/10 rule for direct payment

The 10/10 rule controls direct payment, not whether a court can divide retired pay. The military department pays a former spouse's property share directly from the member's retired pay only if the marriage lasted 10 years or more (1408(d)(2)). Those years of marriage must overlap at least 10 years of the member's creditable service. Without 10/10, a court can still divide retired pay under 1408(c). The former spouse's share is just not paid directly under this rule, so the judgment needs another way to pay it. Direct payments from retired pay under court orders treating it as property may not exceed 50 percent of the disposable retired pay (1408(e)(1)). If that limit is reached, the member is still liable for the rest of what the court order requires (1408(e)(6)).

How Illinois treats pensions earned during the marriage

In a military pension divorce, Illinois law is the starting point. Pension benefits acquired by either spouse after the marriage and before the judgment are presumed to be marital property (750 ILCS 5/503(b)(2)). The presumption can be overcome only by clear and convincing evidence that the benefits were acquired by one of the non-marital methods listed in Section 503(a). Private retirement plans are usually divided with a separate order; our guide to QDROs and QILDROs explains those. Benefits such as survivor coverage and disability pay raise separate questions, so ask a lawyer before you sign a settlement.

Parenting plans and deployment

Illinois law addresses deployment directly. When allocating parenting time, the court considers the terms of a parent's military family-care plan that a parent must complete before deployment (750 ILCS 5/602.7(b)(16)).

A parent who is deployed, or who has orders to deploy, can ask the court for substitute visitation (602.7(d)). On that motion, the court may let the parent name a person the child knows to exercise reasonable substitute visitation. The court must find that this is in the child's best interests. The court applies the best-interest factors to the person designated.

Every parenting plan must allocate significant decisions and set each parent's parenting time through a schedule or a formula detailed enough to enforce (750 ILCS 5/602.10(f)(1), (2)). It must also cover communications with the child during the other parent's time, including electronic communications (602.10(f)(11)). For a service member, that can mean planned video calls during deployment and a schedule that resumes on return. Read more about allocation of parental responsibilities.

Child support and maintenance

Child support in a military divorce follows the Illinois guidelines. The court determines support by applying the guidelines, unless it finds that applying them would be inappropriate (750 ILCS 5/505(a)(2)). Gross income means the total of all income from all sources, with listed exceptions such as benefits from means-tested public assistance programs (505(a)(3)(A)). How each part of military pay is treated is a question to raise with your lawyer, with recent pay statements in hand.

The support order must also provide for the children's health insurance (750 ILCS 5/505.2(b)). A court order for child support or alimony can be served on the military department. After effective service, federal law provides for payments from the member's disposable retired pay to satisfy it, within limits (1408(d)(1)). For maintenance, see our spousal maintenance page.

Getting help

A lawyer can check where to file, whether the court can divide retired pay, and how a parenting plan should handle deployment. Our Chicago divorce lawyer page explains how the firm handles divorces in Chicago and Cook, DuPage, Lake and Will Counties, from its office in Chicago. Military legal assistance offices may also be able to help. Federal law lets the military provide legal assistance with personal civil legal affairs to active duty members, their dependents and certain others (10 U.S.C. 1044(a)). That help depends on the availability of legal staff. Ask your installation's office what it can help with.

If you and your spouse agree on every issue, the uncontested divorce fee is $1,500 flat (court filing fees not included); see uncontested divorce in Chicago. Full representation is an initial payment of $1,500 to $2,500, then $500 to $650 per month beginning 30 days after the initial payment while representation remains active. Fees are confirmed in writing before you engage the firm, and no lawyer can promise a particular result.

Consultations are by phone; a free weekend consultation is available by Zoom. Call 312-965-5618.