by Attorney Eric D. PuryearThe first step in the divorce process, is determining where exactly to file the divorce and begin court proceedings. This process is usually simple, but it can be difficult for military families. For a divorce judgment to be valid, one of the individuals usually must be domiciled in the State issuing the divorce decree.
Domicile is any State where an individual is physically present with the intent of making that State the individual’s home. An individual often times has the same residency as their domicile, but this may not be for the case for those in the military. An individual may consider their domicile to be Illinois, but they may be stationed in Virginia. The Home of Record used by the military is not the same thing as legal residence or domicile. The Home of Record is simply the place where the individual enlisted in the military, and should not be used in determining the residency or domicile.
Domicile is very important in military divorces. In general, the requirements for filing in military divorce is to file where the other spouse resides and is domiciled; the State where the military spouse is stationed; or the State where the Military Spouse claims legal residence.
In addition to domicile, many states have a residency requirement. While it is best to file in the State of the filing party’s domicile, the party filing still must determine if they satisfy any and all residency requirements. In Illinois, one of the spouses must reside in Illinois for at least ninety (90) days. In Iowa, there is a one year residency requirement for the individual filing for divorce, unless the spouse resides in Iowa and is served by personal service.
Some states will grant a divorce to military members even if the State is not their domicile. For example, in Illinois, a military member stationed in the state may filed for divorce in Illinois if they have maintained their military presence there for ninety (90) days. While the divorce may be valid, individuals who use this statute should be cautious when neither spouse considers Illinois to be their domicile. There may be jurisdictional issues in other States when there is a bona-fide domicile of one of the parties, and the other party may raise a jurisdictional or venue objection.