When one or both parties are servicemembers, there are additional factors such as deployment and child relocation, as well as legal issues, such as military pensions and benefits. In many respects, divorce involving a member of the military is like any other divorce.
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It must be filed in a state court, and a state judge will make rulings and orders. The question is, where can you file?
Divorce Laws in Louisiana
One of our attorneys will help you determine if a Louisiana court will have jurisdiction. Property division is a little more complicated in a military divorce. Depending on how long the couple was married, a non-military spouse will have the right to certain very significant benefits, including pension benefits, health benefits, and the right to use military facilities such as a PX.
Child custody and visitation may be complicated by the assignment of the serviceperson to a distant base or even active duty. A long-distance parenting plan may be required. Find a Lawyer. Law Students. US Federal Law. US State Law. Other Databases. Legal Marketing. Counseling: As previously discussed, this may be the best option, depending on your particular situation.
Trial Separation: Before deciding whether a divorce is what you need, you may opt for a trial separation. It is not a "legal separation" and you continue to be legally married. If you separate, you should agree as to all major issues such as child and spousal support, custody, visitation, medical bills of dependents, tax questions, life insurance, transportation expenses, household goods, the distribution of property and debts. Neither party can be forced to sign the agreement, but once both do, it is enforceable in court. Preferably, you should put this agreement in writing and have it notarized the Legal Assistance Office can notarize the agreement for you.
If during the separation, your spouse fails to abide by this agreement, then you can take your spouse to court and enforce the agreement as with any other contract. Another benefit of a separation agreement is that you can use the date the agreement was signed as the last day for determining marital property and liability. Thus, all subsequently acquired property will be considered separate property, and you generally won't be liable for your spouse's debts if you subsequently divorce. During separation, all dependents are still entitled to full military benefits.
Under Alabama law, a divorce from bed and board is recognized. This is the same as a legal separation as opposed to a divorce from the bonds of matrimony.
The 10-Year Rule in Military Divorce Cases
When you decide to pursue a divorce, the separation agreement can serve as the basis of a property settlement in your divorce decree. When you begin the divorce proceedings you will, in most jurisdictions, attach the Marital Separation Agreement to the complaint and ask the court to merge, but not incorporate, the Agreement into the final judicial decree. If the Marital Separation Agreement is incorporated into the decree, it becomes a court order and is enforceable by the court's contempt powers. If you don't incorporate it into the decree, it remains a contract between you and your spouse, which you later have to sue in a separate action to enforce.
If the separation agreement is not incorporated into the divorce decree, and your spouse violates the agreement you can still seek money damages for the violation of the agreement, but it is easier and faster if the agreement is incorporated into the divorce decree. A separation agreement is a legal document that will bind you through many years and determine your rights, obligations, and responsibilities from your marriage.
You and your spouse can amend the agreement if you both consent to the changes; or it can be modified by a court order, provided the agreement does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children. Annulment: An annulment is a court decree saying that the marriage never took place because of a disability or defect that existed at the time of the marriage ceremony.
Because it is so difficult to prove, it is not used often. The following are the most common grounds used to get an annulment: 1 one of the parties was too young to get married; 2 one of the parties is guilty of fraud; 3 one of the parties was under duress when they got married; 4 one party didn't have the mental capacity to get married; 5 one party was already married to someone else; or 6 the marriage is incestuous.
Alabama Divorce: In Alabama, divorce is called divorce from the bonds of matrimony. In order to file for divorce, you must meet the legal requirements. Usually the standard of living for both spouses is reduced after a divorce. The intent can be proven by the parties holding themselves out to others as husband and wife. Once a common law marriage is established, it is no different from a ceremonial marriage. It can only be dissolved by divorce. Alabama has simple divorce laws. Almost all divorces are obtained on the ground of an irretrievable breakdown of the marriage. Some states call it "irreconcilable differences.
Residency: When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months preceding the filing of the complaint, which must be alleged in the complaint and proved. If the residency requirement is not met, the court does not have jurisdiction.
How Military Divorce Is Different
Jurisdiction: An Alabama court must have personal jurisdiction over the parties to be able to hear the divorce case and also have the power to make any type of award, such as property distribution and custody rights. Generally, jurisdiction is found where a court determines that a person has "minimum contacts" with a state. The person filing for divorce automatically consents to jurisdiction.
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If Alabama doesn't have jurisdiction over the defendant, then an Alabama court cannot make an award. If the defendant is a nonresident, then the divorce is filed in the county in which the plaintiff resides. If the non-custodial parent files the petition to modify, the custodial parent may choose the venue.
Persons in military service and spouses living in Alabama are deemed residents of Alabama for the purpose of maintaining suits at law and equity in this state. When the defendant is a nonresident, the plaintiff must have been a bona fide resident of this state for six 6 months prior to filing for divorce, which must be alleged and proved. Defendant in Alabama is being sued by an out-of-state plaintiff: In this case, one has to research the jurisdictional laws of the state from which the plaintiff is suing to see how their statutes and courts define "minimum contacts.
If you are thus being sued, you should normally retain an attorney in that state to represent you. Plaintiff in Alabama is suing out-of-state defendant: As stated in paragraph 8, for an Alabama court to hear this case, the out-of-state defendant must have "minimum contacts" with this state.
Compromise in a divorce action: Generally, depending on each individual's particular circumstance, individuals may want to consider reaching mutual agreement prior to pursuing a contested divorce. Request a delay: If you are active duty military, you can request a court to temporarily delay any legal action pending against you, under the Soldiers' and Sailors' Civil Relief Act of , as subsequently amended 50 U.
Sec However, you must be able to show that being in the military materially affects your ability to appear in the court proceeding and thus prevents you from defending yourself. If you want to avail yourself of the protection of this Act, you should request your commander sign a sworn affidavit stating you cannot be granted leave until a specific date because of military necessity. You should also write a letter to the court detailing all the actions you have taken to appear in court i.
A judge is more likely to grant you an extension of time to respond if you request the continuance for a definite and reasonable period of time. Lack of jurisdiction: As previously discussed, you can argue you have no minimum contacts with the state which is suing you so that state has no jurisdiction over you.
Divorce Support - Louisiana Military Divorce Laws
To make this argument, you need to retain an attorney in that state to make a special appearance on your behalf to argue that state has no jurisdiction. If you win, the case will be dismissed.
However, you should consider whether to incur the expense of litigation if you have nothing to gain but a delay. Non-resident: If you are not a legal resident of a particular state, but reside there only pursuant to military orders, then the case against you may be dismissed if you raise the defense. Under some conditions, you can even be liable past the age of This could happen if the child has a handicap. Under this procedure, each spouse has the right to ask questions and obtain documents concerning the other spouse's income, expenses, assets, liabilities and other matters before having a trial or settlement of the case.
If you cannot agree on matters with your spouse, a judge conducts a trial or hearing. After listening to all evidence, the judge will make a decision concerning the division of property, alimony, child support, custody of children, visitation, and other matters. Either spouse can ask for a new trial or appeal the judge's decision, when appropriate. General steps: In this type of divorce, you generally have to retain an attorney to represent you. The following is included for an overview of the process. Some terminology you should know is that the spouse filing for divorce is called the plaintiff and the spouse being sued is called the defendant.
The plaintiff can include in the Complaint a request for child and spousal support, property and debt distribution, child custody and visitation, as well as any other request. Step 2: After filing the Complaint, the plaintiff must also make an attempt to notify the spouse of the divorce action. If you know where your spouse is, you would fill out a Summons and file it with the court. After the court stamps the summons, you can request the sheriff of the county in which the defendant is found or a special process server appointed by the sheriff to give a copy of the summons and Complaint to your spouse.
You must give the sheriff a good address where the defendant can be found. A small fee is charged for serving the defendant with the papers. If the defendant resides out of the state, the defendant can be notified in any manner as can be done in Alabama by an officer authorized to serve the process in that state. Once the defendant is served with the divorce papers, the sheriff or process server completes an affidavit informing the court the defendant has received the divorce papers and returns it to the plaintiff or the court.
This entire process is called the service of process.