Can A Deployed Service Member Delay An Illinois Divorce Under The Servicemembers Civil Relief Act?
Military deployment can create serious practical problems when an Illinois divorce is already pending or one spouse files for divorce shortly before the other spouse leaves for active duty. A deployed service member may be thousands of miles away, working under strict military orders, and unable to participate meaningfully in hearings, depositions, parenting-time disputes, or financial proceedings. Federal law recognizes that military service should not cause a person to lose important civil rights simply because military obligations prevent participation in court. The Servicemembers Civil Relief Act, commonly called the SCRA, can allow a qualifying service member to ask an Illinois court to temporarily delay divorce proceedings. However, the protection is not an automatic right to place an entire divorce on hold for as long as the deployment lasts.
When I handle an Illinois family law matter involving military service, I look carefully at both the federal SCRA requirements and the Illinois Marriage and Dissolution of Marriage Act. These cases can involve the divorce itself, allocation of parental responsibilities, parenting time, child support, property division, maintenance, paternity, and other family law issues. I may represent the deployed service member or the other spouse, and the legal strategy can differ significantly depending on which side of the case I represent.
The SCRA Can Temporarily Stay An Illinois Divorce
The primary federal provision governing an active service member’s request to postpone a civil court proceeding is 50 U.S.C. § 3932. The statute applies to civil actions, expressly including child custody proceedings, when the service member has received notice of the case and is either currently in military service or within 90 days after termination or release from military service.
A service member who satisfies the statutory requirements may request what the law calls a “stay” of the proceedings. Under 50 U.S.C. § 3932(b), a court must grant a stay of at least 90 days when the service member submits the required information showing that current military duties materially affect the ability to appear.
This distinction is important. Merely being stationed outside Illinois or deployed overseas does not automatically freeze a divorce case. The service member must establish that military duties materially interfere with participation in the proceedings. A service member who can reasonably participate through counsel, remote hearings, electronic communications, document production, or scheduled leave may face a different analysis from someone conducting military operations where meaningful participation is impossible.
What A Service Member Must Show To Obtain A Stay
Under 50 U.S.C. § 3932(b)(2), an application for a stay must contain specific supporting information. The service member generally must provide a communication explaining how current military duties materially affect the ability to appear and identifying when the service member expects to become available. The request must also include communication from the service member’s commanding officer stating that current military duties prevent appearance and that military leave is not authorized at that time.
These requirements prevent the SCRA from becoming a general mechanism for indefinitely postponing a divorce. I would normally want the request supported by clear information about the deployment, duties, availability, communication restrictions, hearing schedule, and any potential leave.
When the requirements are satisfied, the initial stay must last at least 90 days. A service member may also seek an additional stay if military duties continue to materially affect the ability to participate. Whether additional relief will be granted depends on the circumstances and the applicable federal requirements.
The SCRA Protects Service Members From Improper Default Judgments
Another major concern arises when the deployed service member has not appeared in the divorce proceeding. 50 U.S.C. § 3931 provides protections against default judgments entered against service members who have not appeared.
Before entering a default judgment, the court must generally require information concerning whether the defendant is in military service. If it appears that the defendant is serving in the military, the court generally must appoint an attorney before entering judgment. Federal law also provides circumstances in which the proceedings must be stayed.
This protection matters because a divorce judgment can address far more than the legal termination of a marriage. A judgment can potentially affect property, debt, maintenance, child-related issues, and other significant rights. A spouse generally cannot use the other spouse’s military absence as an easy opportunity to obtain a judgment without giving the service member the protections required by federal law.
At the same time, the SCRA does not prevent a spouse from filing for divorce simply because the other spouse is serving in the military. It protects meaningful participation in the judicial process rather than creating immunity from divorce.
Deployment Can Affect Parenting Time And Child Custody Decisions
Illinois law uses the terms “allocation of parental responsibilities” and “parenting time” for issues that were traditionally described as child custody and visitation.
Under 750 ILCS 5/602.7, Illinois courts allocate parenting time according to the child’s best interests. The statute identifies numerous factors the court may consider, including the wishes of the parents, the child’s needs, the child’s adjustment to home and community, each parent’s ability to encourage the child’s relationship with the other parent, and other relevant circumstances.
The statute specifically addresses military families. 750 ILCS 5/602.7(b)(16) permits the court to consider the terms of a military family-care plan that a member of the United States Armed Forces must complete before deployment.
Deployment therefore does not erase a parent’s role in the child’s life. Instead, the court can consider how parental responsibilities can be handled while the parent is serving and what arrangement protects the child’s interests.
A Deployed Parent May Request Substitute Visitation
Illinois law contains an additional protection that can be particularly important for military families. Under 750 ILCS 5/602.7(d), a parent who is deployed or has received orders to deploy may ask the court to allow a person known to the child to exercise reasonable substitute visitation on the deployed parent’s behalf. The court may grant the request if substitute visitation is in the child’s best interests.
The person selected could potentially be someone who already has a meaningful relationship with the child, such as a grandparent or another appropriate individual. The court applies the relevant best-interest considerations before granting such visitation.
This provision can help preserve important family connections while a parent is away serving. It does not automatically transfer all of the deployed parent’s parenting time to another person, and the court retains authority to determine what arrangement serves the child.
Illinois visitation law also recognizes that electronic communication may be appropriate in certain circumstances under 750 ILCS 5/602.9, which can become particularly useful when geographical distance prevents regular in-person contact.
Deployment Alone Should Not Determine Permanent Custody
Federal law also protects deployed parents against having military service used as the sole reason for a permanent loss of custody.
Under 50 U.S.C. § 3938, when a temporary custody order is entered solely because of a parent’s deployment, the order must expire no later than the period justified by that deployment. Federal law further provides that a court considering a permanent modification cannot use the parent’s deployment, or possibility of deployment, as the sole factor in determining the child’s best interests.
That does not mean deployment is irrelevant to every parenting decision. Courts still must create workable arrangements for children. However, military service by itself should not be treated as evidence that a parent is unfit or should permanently lose a parenting role.
When I represent either parent in a military divorce, I pay close attention to whether an arrangement is genuinely temporary because of deployment or whether one party is attempting to turn a temporary military absence into a permanent parenting advantage.
The Other Spouse Also Has Rights During A Military Divorce
SCRA protections are significant, but they do not mean the spouse who remains in Illinois loses the ability to obtain necessary relief.
There may be pressing matters involving children, household expenses, support, possession of property, safety, or other family needs that cannot reasonably remain unresolved throughout a lengthy deployment. The court may therefore have to balance the service member’s federal rights with the immediate needs of the family and children.
A spouse opposing a requested delay may examine whether military service actually prevents meaningful participation or whether reasonable alternatives are available. Modern courts may be able to use remote appearances, electronic document exchange, scheduled testimony, or other arrangements when permitted.
The critical issue is whether military duties materially affect the service member’s ability to protect his or her legal interests, not simply whether the person is presently serving.
Frequently Asked Questions About Military Deployment And Illinois Divorce
Does Deployment Automatically Stop An Illinois Divorce?
No. Deployment does not automatically suspend an Illinois divorce. A qualifying service member may request a stay under 50 U.S.C. § 3932, but the service member must generally establish that current military duties materially affect the ability to appear and participate. The request also requires supporting information concerning availability and military leave. When the federal requirements are satisfied, the court must provide an initial stay of at least 90 days.
A spouse may therefore file a divorce while the other spouse is deployed. The real question becomes whether particular proceedings should be postponed to protect the service member’s ability to participate meaningfully.
How Long Can A Service Member Delay An Illinois Divorce?
The initial mandatory stay under 50 U.S.C. § 3932 is at least 90 days when the service member satisfies the statutory requirements. Additional stays may be requested when military duties continue to materially affect participation.
Can My Spouse Get Divorced While I Am Deployed Overseas?
Potentially, but federal law gives qualifying service members procedural protections. If military duties materially prevent you from participating, you may be entitled to request a stay under the SCRA. If you have not appeared in the case, 50 U.S.C. § 3931 also imposes protections before a default judgment may be entered against a person in military service.
Can Deployment Cause A Parent To Lose Custody In Illinois?
Deployment alone should not cause a parent to permanently lose custody or parental responsibilities. 50 U.S.C. § 3938 states that deployment or the possibility of deployment cannot be the sole factor supporting a permanent custody modification. Temporary custody arrangements based solely on deployment must also expire no later than the period justified by the deployment.
Can Someone Else Use My Parenting Time While I Am Deployed?
Possibly. 750 ILCS 5/602.7(d) permits a deployed parent, or a parent with deployment orders, to request reasonable substitute visitation by a person known to the child. The court must determine that the arrangement serves the child’s best interests.
Speak With A Schaumburg Family Law Lawyer About A Military Divorce
A military deployment can significantly affect the timing and management of an Illinois divorce, but it does not automatically stop the case or determine the outcome of parenting disputes. Federal law protects qualifying service members whose duties materially interfere with their ability to participate, while Illinois law continues to protect the interests of children and the legal rights of both spouses.
At the Law Office of Fedor Kozlov, I represent clients on either side of divorce and family law proceedings involving child custody decisions, allocation of parental responsibilities, parenting time and visitation rights, paternity, support, property issues, and other family law disputes. When military service is involved, I examine both the Servicemembers Civil Relief Act and Illinois family law so that the case is handled according to the protections and obligations imposed by each.
If you are a deployed service member facing an Illinois divorce, or you are divorcing a spouse who has been deployed, contact the Law Office of Fedor Kozlov to discuss your circumstances. The firm represents clients in Schaumburg and throughout Chicago, Illinois. Contact our Schaumburg divorce attorney at the Law Office of Fedor Kozlov by calling (847) 241-1299 to receive a consultation.
