Divorce & Separation Overseas

Please note that this Information Paper only provides basic information and is not intended to serve

as a substitute for personal consultations with a Legal Assistance Attorney.

7th Army Training Command Legal Assistance Information

INTRODUCTION: We prepared this handout with frequently asked questions on

issues involving separation and divorce. It is, of course, general in nature since no

handout can anticipate and answer all your specific questions.

1. CAN I GET A DIVORCE AT THE LEGAL ASSISTANCE OFFICE?

A. No. You have to go to court to get a divorce, and you will probably need a

private attorney to do that. Although you are not legally required to have an attorney,

it is sometimes difficult to get a divorce without one. Even though a legal assistance

attorney (LAA) can't go to court for you, a LAA can still help you by advising you about

the issues and procedures involved in your case and by preparing a separation

agreement for you and your spouse to sign, if appropriate.

2. WHERE CAN I GET DIVORCED?

A. You can’t just file for divorce anywhere. A valid and legal divorce can only be

granted in the home state or domicile of either the husband or the wife. This means

the true legal home of one of the marriage partners. It is the place where a partner

can vote, pays income taxes, and qualifies for in-state college tuition. It does not

necessarily mean the same thing as a military "home of record." You will usually

have to hire a lawyer in that place (state or country) to start the divorce proceedings.

We don’t recommend that our clients try to get a “quickie divorce” in places such as

the Dominican Republic, Mexico or Nevada because they’re usually not legal

residents of any of these places, and all they get is an expensive piece of paper that’s

worthless!

3. WHAT HAPPENS IN A DIVORCE?

A. Several things can or will happen:

 First of all, you become single again -- you are no longer married. You can

date, get remarried, or stay single. You can file your taxes as “Single” (or, if

you have dependents living with you, as “Head of Household”) rather than as

“Married.” Usually the ex-wife can also resume the use of her maiden name

– and often this may be requested in the divorce papers that are filed by her.

 A divorce, however, doesn’t necessarily mean that child support, alimony,

property division and custody are all resolved. This depends on the law of the

particular place (state or country) where you file for divorce or dissolution of

marriage.

 In some places, that’s what must happen before the divorce is granted; all

issues in dispute between the parties must be resolved by trial (and all not

in dispute must be settled by written agreement) before the court will give

you a divorce.

 In others, however, the divorce is entirely separate from these other

issues and may be granted independently of a resolution of these issues;

you can go ahead and litigate (fight in court) any contested issues at any

time before or after the divorce, which is granted independent of the

claims for property division, custody, child support and alimony.

4. HOW LONG DOES A DIVORCE TAKE? WHAT ARE THE GROUNDS? CAN

MY SPOUSE CONTEST THE DIVORCE?

A. The answers to these questions depend entirely on the law of the place

where you get divorced. That means about 50 different answers are possible for

just the United States alone. In fact, in some states the answers vary from county to

county or even from city to city. You'll have to ask your legal assistance attorney or

your divorce lawyer these questions in order to get the right answers.

DIVORCE IN THE UNITED STATES

5. I HEARD YOU HAVE TO HAVE A SEPARATION AGREEMENT TO GET A

DIVORCE. IS THAT TRUE?

A. No. As a general rule, you do not need a separation agreement in order to

obtain a divorce. While a separation agreement will usually make the divorce

simpler, cheaper and sometimes faster to get, it is not a requirement for a divorce.

You should consider a separation agreement if you think you and your spouse can

agree on its terms, since this means a full resolution of all your differences and it

leaves less to fight over with lawyers in court.

6. WE DON’T HAVE ANYTHING TO FIGHT OVER – NO KIDS, NO PROPERTY.

CAN’T WE FILE FOR DIVORCE WITHOUT A LAWYER AND SAVE SOME

MONEY?

A. In some states there’s a simplified procedure for “pro se divorce” (which

basically means “do-it-yourself”). In such cases, there are standard forms in which

you can fill in the blanks, or sometimes there are examples you can use (but which

you’ll have to re- type) in order to start your divorce case. Then you would need to

serve these papers on the other side, usually by certified mail, by sheriff or by a

“process-server” (that is, a person who delivers court papers). If the other side

doesn’t respond within a certain period of time, the court will either grant your divorce

then and there, or else may allow a hearing to be held which should result in an

uncontested divorce. Having said all of this, please note that there’s no easy way of

telling which states allow this simplified procedure, which ones make it easier or more

difficult for you to get your own divorce without a lawyer. Once again, ask a legal

assistance attorney to advise you.

7. WHAT ABOUT ATTORNEY’S FEES? I SURE DON’T WANT TO PAY A LOT OF

MONEY FOR MY SEPARATION AND DIVORCE. LET MY SPOUSE PAY ALL MY

ATTORNEY’S FEES! WHY DO I HAVE TO PAY?

A. Be sure to ask early and often about attorney’s fees. Here are some

suggestions:

 Find out from your lawyer if the attorney’s fees you incur can be assessed by

the court against the other side (in other words, if your soon-to-be-ex can be

made to pay your lawyer’s bill).

 Be sure to ask your lawyer at the outset how much he or she charges. Get this

written down in a contract that both you and your lawyer sign. Read the contract

closely before signing; you might even want to take it home with you before

signing to read it closely and to allow yourself to think about it before you commit

yourself to what might be thousands of dollars of legal expenses. Be sure to ask

any questions you have before you sign it. Also make sure you keep a copy of

the contract.

 Ask for an estimate of the total charges and ask what services are included in

this estimate. Ask what your attorney expects to be the steps you go through and

how much time (or expense) they might involve. If you hire an experienced

lawyer, he or she should be able to at least "outline" the process for you with a

fair degree of accuracy.

 At the same time, please be aware that it’s impossible to predict with any

degree of accuracy what will happen in a divorce case. While many of these are

resolved as standard uncontested divorces with no alimony, property or child-

related issues involved, there are a great many cases that are completely

unpredictable, so don’t expect a specific dollar amount to be quoted to you as

“the entire fee” in anything but a standard uncontested divorce. In fact, be wary

of attorneys who promise to handle your entire case for a fixed sum, since it is

impossible at the outset to tell what will occur.

 Be sure you understand the hourly rate of your lawyer, how the billing

takes place, when you're expected to "refresh the retainer" and so on.

 Be sure to ask lots of questions if you want answers and you want to know

how you will be charged in your case -- after all, it’s your money.

8. WHAT SHOULD I WATCH OUT FOR?

A Lots of things, but four in particular are very important:

 Alimony, maintenance, or spousal support (in many jurisdictions) must be

requested in court before the divorce is granted in most states in order to "keep

it alive" for the judge to decide. If you don't want alimony, or if you make more

than your spouse, that's fine. But if you're a dependent spouse and you intend

to ask the court for alimony, discuss this with your divorce lawyer at the outset.

That means before the divorce is granted.

 Support for your family isn’t necessarily resolved in a divorce. Don’t stop

paying family support unless the court tells you that you can or specifies a

different amount than Army regulations. This is a matter to discuss with your

LAA or your civilian lawyer.

 Property division (sometimes called equitable distribution) should also be

done at or before the time of the divorce. The division of marital (or community)

property is alive and well in all 50 states, and you should be sure to request this

in your "pleadings" (the complaint or petition for divorce) so as to preserve this

for the court to decide if you and your spouse cannot "work things out" by

agreement (or, in the case of dividing military pension rights, a consent order).

An agreement, of course, would probably be the cheapest way to resolve this

issue, but that's not always possible if the two of you don't see eye-to-eye. Talk

to your lawyer about this also. Make a list for him or her of all the property

either of you has acquired during the marriage (real estate, motor vehicles,

bank accounts, household furnishings, stocks and investments, retirement

assets) to make easier the job of deciding on whether an agreement can be

reached. And don’t forget the debts that either or both of you accumulated for

marital purposes during the marriage.

 Recognition of your divorce “back home” (in the U.S.) may be a problem if

you get your divorce overseas. American courts are required by the U.S.

Constitution to recognize and honor the orders and decree of their sister

states (so Kentucky, for example, would have to honor and enforce your

divorce decree from Arizona). But U.S. courts do not have to recognize

court decrees from other countries. Your divorce decree and child support

order from Belgium, for example, may not be honored in Florida. If you get

a decree of divorce and custody in Korea, it need not be recognized and

enforced in California. And the courts of foreign countries cannot divide

military pension benefits. This can only be done by an American court and

should be requested in court papers before the divorce is granted. Be sure

you know these rules before you choose to go to court overseas.

9. DOES IT MATTER WHO FILES FOR THE DIVORCE?

A. Not really. Some jurisdictions may charge less for filing by a military

member, but other than this small difference, it usually doesn't make any difference.

10. WHAT IF MY SPOUSE WON'T GIVE ME A DIVORCE?

A. The judge is the person who grants a divorce, not your spouse. If your

spouse won't cooperate with you, it will take longer and probably cost more to get

your divorce, but you can still get one.

11. HOW DOES THE COURT PROCEDURE ACTUALLY WORK?

A. In all states, you may file for divorce only if you have been a resident for at

least some period of time, often six months, and prior to the date of filing. You may

also file for divorce in the state where your spouse is a legal resident. The term

“legal resident” means your home state or your “domicile” (see 2 above, WHERE

CAN I GET DIVORCED?). In addition, if there is any dispute about child custody,

then you may have to file in the state where the child has been living for the six

months immediately preceding the filing of the lawsuit.

After filing your divorce paperwork at the courthouse, your lawyer will serve a copy of

the summons and complaint on your spouse. If your spouse consents or does not file

an answer within the time allowed, usually a few weeks after being served, the judge

may then grant your divorce.

If your spouse files an answer contesting the divorce, then a trial date will be set. At

the trial, both of you will be allowed to testify, and then the judge will decide whether

to grant the divorce. In some states the judge will also decide how to split up your

property and debts, and all the other issues involved in your case. It would be very

unusual for the judge not to grant a divorce, but the property and custody

arrangements may not be what you asked for.

12. THAT SEEMS PRETTY LONG. IS THERE A QUICKER WAY?

A. Not really. If you believe everything you see, you may remember seeing ads

for quick foreign divorces, but don’t be fooled. The United States does not recognize

these type of divorces unless you have your spouse’s consent. If you do have your

spouse’s consent, it is usually cheaper to file in the U.S.

13. IS MY DIVORCE FINAL WHEN THE JUDGE SIGNS THE DECREE?

A. Not always. In some states there is a waiting period after entry of judgment

before the divorce becomes final. In other states, it’s final when signed by the judge.

When in doubt, ask your divorce attorney or check the divorce judgment itself – the

decree may state its effective date.

14. CAN MY SPOUSE AND I SEE THE SAME LAWYER?

A. Yes, sometimes. You and your spouse CANNOT see the same legal

assistance attorney, due to potential conflict of interest. You CAN use the same

private lawyer in these situations:

To explain the local divorce law and procedures (e.g., you'll need to go to court in

your state of residence)

 Lawyer as Document Drafter. If you’ve already reached agreement on all

the issues and you want the lawyer simply to write down your agreements in

a form that can be signed by both of you for your separation agreement; or

 Lawyer as Mediator. If you are likely to reach agreement on all of the

important issues involved in your divorce or separation, and the lawyer is not

acting as an advocate for either party, but rather as an impartial mediator who

provides information to both parties and discusses possible solutions to the

issues involved in the divorce or separation. Spouses who are able to

cooperate with each other to resolve these issues fairly and amicably can

often get a separation agreement faster and easier through mediation than

through traditional legal assistance.

Outside of these cases, you may not use the same lawyer if the two of you are in

dispute over substantial or important issues, because it would be a conflict of interest

for the lawyer to try to represent both of you in the separation and divorce. This

means that he or she could not be loyal to one of you without doing a disservice to

the other. A lawyer cannot have two clients in a divorce case, since whatever he or

she gains for one will usually be at the expense of the other.

15. IS THERE ANYTHING ELSE I SHOULD DO BEFORE THE DIVORCE?

A. Yes. Among other things

 Both spouses should consider canceling joint financial obligations, accounts

and other arrangements, such as credit cards, bank accounts and phone calling

cards. The military spouse should file a disclaimer with AAFES and other

check-cashing facilities to avoid being held liable for the non-military spouse's

bad checks, and he or she should put a block on DPP or similar plans at AAFES

for the same reason. AAFES disclaimers must be renewed every year until the

divorce becomes final.

 Both spouses should consider canceling powers of attorney, making new wills,

and changing the beneficiaries of IRA’s and life insurance policies, including

SGLI.

 If you and your spouse get back together and live with each other after the

separation agreement is signed, the validity and legal effectiveness of the

agreement may be damaged or destroyed.

 If you both agree not to follow one or more of the provisions of the separation

agreement (for example, if you decide that one of the children should live with

someone other than the custodial parent named in the agreement), then you

should sign a new agreement or an amendment to the separation agreement.

To change court-ordered child support, you must go back to court and ask the

judge to make the change.

 The military spouse must notify DEH after the separation agreement is signed

or you stop living together, whichever occurs first. DEH will ask you to move out

of the government quarters, usually within 30 to 60 days.

 You should also notify your commander to update the military spouse's

personnel records and the non-military spouse's ID card, passport stamps, no-

fee passport, ration cards, driver's license, POV registration, and residence

permit.

DIVORCE IN GERMANY

16. WHAT’S SEPARATION AND DIVORCE LIKE IN GERMANY?

Divorce: If you are able to file for divorce in Germany (because one of you is a

legal resident of the country), you must have lived apart for at least one full year

to get an uncontested divorce, and at least three full years to get a contested

divorce. If considering a German divorce, please request an appointment with

one of our German Legal Assistance Attorneys.

17. IF I HAVE OTHER QUESTIONS, WHAT SHOULD I DO?

A. Research internet web-sites for more general information:

 Military Divorce & Separation Issues

http://usmilitary.about.com/cs/divorce (from About.com)

 ABA information: Tables Summarizing Family Law in the Fifty States -

it covers alimony/spousal support factors; custody criteria; child

support guidelines; grounds for divorce and residency requirements;

property division; and third-party visitation.

See a legal assistance attorney or private attorney as soon as possible. Your lawyer

can answer many questions and help you to make a fair and intelligent decision about

your choices, options, and alternatives. Our legal assistance office stands ready,

willing and able to help you. Bring with you to the interview a copy of any documents

or court papers that might be helpful.