News | Feb. 2, 2021

Divorcing in the U.S. While Overseas

By LT Michael Killius

Wouldn’t it be nice if there were a Uniform Code of Divorce Law? Like the Uniform Code of Military Justice? One set of rules governing divorce from San Diego, to Sasebo, to Sigonella?

Unfortunately, there is nothing uniform about U.S. divorce law. In fact, all law about family relations — marriage, divorce, child custody, etc. — is owned by each individual state. That means we have 50 unique sets of law, with varying terms, rules, and procedures! But as different as each state’s laws may be, there are many legal and practical challenges that are common to divorce throughout the U.S. Consider these: Where should I file for divorce in the U.S.?

If you’re in need of a divorce, you must first ensure that the court has jurisdiction. Jurisdiction is a fancy word for legal authority to hear a case and take a particular action, like granting a divorce. In most states, courts will have the authority to end a legal marriage if at least one of the parties has lived in that state for a certain amount of time. But bear in mind jurisdiction over the marriage is only part of the equation.

Most couples need not just an end to the marriage, but a decision on how to divide debts and assets and how to set rules for the parties going forward. Whether a court has jurisdiction to compel a divorcee to assume debts or pay money, however, requires a different type of “legal authority” that might not exist in the state of a party’s residence. How does it work if I’m living OCONUS?

Most people looking for a divorce want to physically separate long before a judge signs the divorce decree, and some states like Virginia even require separation before granting a divorce. Finding alternative housing abroad, however, may not be an option. If it is, Status-ofForces Agreements (SOFAs) or similar agreements may restrict the ability of the parties to seek a job to supplement the cost of two households. Dependent spouses will also lose their SOFA status upon divorce. Can’t the dependent spouse just return to the U.S.? That’s not so simple either. The Command may not support an Early-Return-Of-Dependents (ERD) just for a divorce. And if children are involved, bringing those children to the U.S. from just about anywhere in this Region without permission from the soon-to-be ex-spouse is what Hague Convention states like the U.S. might call “international child abduction.” YIKES.

What about the children? To add insult to injury, a court with jurisdiction over the legal marriage or the parties does not necessarily have authority over the children. Only the “home state” of the children can make decisions regarding the future of the kids. But what even is “home” for a Navy brat born in Mayport, schooled in Norfolk, and holding a California learner’s permit who lives in Rota? Well, unfortunately, the answer is “it depends” and is unique to each divorce. What about divorcing in the OCONUS country? Because both the practicalities and the legalities of military service OCONUS make pursuing a divorce in the U.S. prohibitively difficult, some Service Members opt to pursue divorce in host nations.

Challenges are manifest, however, and before making such a decision couples should consider the added complication of divorcing in a foreign language and system. Who can help me navigate this process? We can! Legal Assistance attorneys analyze and counsel clients on jurisdiction, grounds for divorce, separation requirements, equitable distribution of assets, spousal support factors, the best-interest-of-the-child legal standard, and more. For a thorough consultation on your particular situation to include filing options, processes, and next steps, contact your local Legal Assistance office and make an appointment with an attorney. We provide divorce advice to all personnel eligible for legal assistance services, including dependents.
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