Divorce is difficult in any family, but for military families, the process can be especially complex. Federal laws, Illinois divorce statutes, and unique military benefits all interact in ways that can surprise service members and spouses alike. If you are facing a military divorce in Illinois, this guide explains the key issues, benefits, and common mistakes to avoid.
Call Us Now To Schedule a Free Ten-Minute Consultation
Military Divorce in Illinois: What You Need to Know
Introduction
Divorce is difficult in any family, but for military families, the process can be especially complex. Federal laws, Illinois divorce statutes, and unique military benefits all interact in ways that can surprise service members and spouses alike. If you are facing a military divorce in Illinois, this guide explains the key issues, benefits, and common mistakes to avoid.
Jurisdiction in a Military Divorce
The first step is deciding where to file. Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), either spouse must have lived in Illinois for at least 90 days before filing. If a service member is stationed in Illinois, that usually qualifies.
The Servicemembers Civil Relief Act (SCRA) protects active-duty members from default judgments. Courts also require an Affidavit of Military Service before entering any default. For custody cases, Illinois follows the UCCJEA, which generally gives jurisdiction to the child’s home state.
Dividing a Military Pension
The military pension is often the largest asset. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), Illinois courts can divide 'disposable retired pay' as marital property.
- 10/10 Rule: DFAS (Defense Finance and Accounting Service) will send payments directly only if the marriage overlapped 10 years of service.
- COLAs must be included.
- VA Disability Waivers reduce pension shares; indemnification clauses protect spouses.
- SBP (Survivor Benefit Plan) provides protection if the retiree dies first, but the former spouse must file with DFAS within one year.
Thrift Savings Plan (TSP)
The TSP is the military’s version of a 401(k). It requires a separate Retirement Benefits Court Order (RBCO).
- Orders should define the marital portion (marriage through divorce).
- Include earnings and losses in the division.
- Outstanding loans should be considered.
- The spouse can roll funds into an IRA to avoid tax penalties.
TRICARE and Other Benefits
Health care is one of the most pressing questions for military spouses.
- 20/20/20 Rule: Marriage 20 years + service 20 years + overlap 20 years = lifetime TRICARE.
- 20/20/15 Rule: Same but only 15 years overlap = 1 year TRICARE.
- Otherwise: CHCBP continuation for 36 months.
Other benefits: GI Bill (non-divisible), Commissary/Exchange (only 20/20/20 spouses), SGLI (member can change beneficiary unless restricted).
Spousal Maintenance and Child Support
Illinois uses a formula, but military pay requires special attention. Courts must include all income: base pay, BAH, BAS, and special pays.
Support orders can be enforced through DFAS allotments or garnishment. Parenting agreements should also address extraordinary costs such as PCS travel expenses.
Property Division Beyond Military Benefits
Illinois is an equitable distribution state.
- Real Estate: If one spouse keeps the house, refinancing deadlines are critical.
- Bank Accounts: Don’t forget base credit unions or overseas accounts.
- Debts: Government Travel Card balances remain the member’s responsibility, even if assigned to the spouse.
Custody and Parenting Plans
Military service creates unique challenges for custody.
- Deployment Clauses: Temporary caregivers + make-up time.
- PCS Relocations: Should be treated as a substantial change in circumstances.
- Virtual Parenting Time: Regular video calls ordered.
- Right of First Refusal: Must be adjusted for drill/training weekends.
Health Care for Children
Orders should require TRICARE coverage for children if eligible. They should allocate uninsured expenses and provide fallback coverage if the member leaves service.
Required Orders and Forms
Military divorces require more than just a divorce decree. Additional orders include:
- Military Pension Division Order (MPDO)
- TSP Division Order (RBCO)
- SBP Election Order
- Parenting Plan Addendum
- Affidavit of Military Service
Case Law to Know
- Mansell v. Mansell (1989): VA disability pay cannot be divided.
- Howell v. Howell (2017): VA waiver reduces spouse’s share unless indemnified.
- Rose v. Rose (1987): VA benefits can still be used for child support.
- In re Marriage of Hunt (Illinois, 1979): Pension time rule formula.
- Wendt (2013) and Wojcik (2005): Illinois courts confirm pensions divisible; indemnification clauses valid.
Top 10 Mistakes in Military Divorce
1. Forgetting COLAs.
2. Missing SBP deadline.
3. Fixed-dollar pension awards pre-retirement.
4. No VA indemnification.
5. Excluding BAH/BAS.
6. No DFAS allotments.
7. Ignoring PCS travel costs.
8. Assuming TRICARE continues.
9. Overlooking base/overseas accounts.
10. Forgetting the SCRA affidavit.
Conclusion
A military divorce in Illinois is more than just dividing property and custody—it requires understanding DFAS rules, TRICARE, SBP, and state law. With proper planning, spouses and children can be protected. With mistakes, benefits can be lost forever. Work with an attorney who understands both Illinois divorce law and military benefits to safeguard your future.
RECENT POSTS
Getting married is an exciting milestone filled with hopes, dreams, and promises for the future. However, amidst the romance and anticipation, practical considerations should not be overlooked.
Divorce is a challenging and emotionally fraught process, but for couples with a prenuptial agreement in Illinois, it can be a smoother and more straightforward experience. Prenups, while often associated with protecting assets in the event of divorce, serve a broader purpose in facilitating the dissolution of marriage with less conflict and uncertainty.