Military Divorce and Family Law in Illinois: A Comprehensive Guide (2025)

Military Divorce and Family Law in Illinois: A Comprehensive Guide Introduction and Disclaimers Military divorces in Illinois involve complex intersections of state family law and federal military laws. From special residency rules to unique asset division issues, both servicemembers and their spouses must navigate additional legal requirements. This guide provides an overview of key topics – jurisdiction, deployments, military pensions, child custody, support, and benefits – with practical considerations for service members (including enlisted personnel and officers) and civilian spouses. Disclaimer: This is general information, not legal advice. Every case is different. Laws (both Illinois statutes and federal regulations) change frequently, and recent court decisions may alter how rules are applied. Always consult a qualified attorney experienced in military divorce. This guide is up-to-date as of late 2025 and includes recent developments (2020–2025), but readers should verify current law before relying on it. (Note: Any sample clauses provided are for educational purposes – attorneys should tailor language to their case and ensure it complies with Illinois law and Department of Defense regulations.)

Jurisdiction and Filing Considerations in Military Divorce Where to File: A threshold issue is deciding where to file the divorce. Under Illinois law, at least one spouse must have lived in Illinois for 90 days before filing (or be stationed in Illinois for 90 days) 1 . If a servicemember is stationed in Illinois, that generally qualifies as residency for divorce jurisdiction 1 . Many military families in Illinois are tied to installations like Great Lakes Naval Station (Lake County) or Scott Air Force Base (St. Clair County). They often file in nearby Illinois courts even if their original “home of record” is elsewhere. In the Chicago area, Cook County courts even have a dedicated “Military Calendar” to accommodate cases involving deployed servicemembers 2 . (This calendar ensures no court action is taken while a party is on active duty and unavailable 2 .) Personal Jurisdiction and the USFSPA: To divide military retirement pay, the court must have proper personal jurisdiction over the servicemember under the federal Uniformed Services Former Spouses’ Protection Act (USFSPA). USFSPA (10 U.S.C. § 1408) allows state courts to treat “disposable retired pay” as marital property, but only if the servicemember: (1) is domiciled in the state, (2) is a resident of the state for reasons other than military assignment, or (3) consents to the court’s jurisdiction 3 . Example: If a service member is only in Illinois due to orders and maintains domicile elsewhere, they could object to Illinois dividing their pension unless they consent. Practically, this means that filing in the servicemember’s state of legal residence or obtaining a clear consent to jurisdiction in the divorce documents is crucial before a court can split a military pension.

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Deployed Spouse or Overseas Service: If your spouse is deployed or stationed overseas, you can still file in Illinois (assuming the residency requirement is met), but extra steps apply for notice and timing. Under Illinois law, if a defendant is in another country on military service, the divorce summons may need to be translated into the local language where they are serving 4 . (Illinois requires this even if the servicemember speaks English – it’s a protection that can be waived by the deployed spouse to speed up the case 5 6 .) Also, international service raises service of process issues – often handled via the Hague Convention or certified mail as applicable. It’s wise to start the case well in advance of deployment if possible, or be prepared for delays if the servicemember is hard to reach. The UCCJEA for Child Custody: Military families move frequently, so jurisdiction for child custody may differ from the divorce forum. Illinois follows the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), which usually gives jurisdiction to the child’s “home state” (where the child lived 6 months prior to filing). If the children have been living in Illinois (often near the spouse’s family or base housing) for 6+ months, Illinois will likely handle custody. But if, say, the servicemember’s family home is elsewhere and the children recently moved from there, another state might have custody jurisdiction. Coordination between states can be required to avoid conflicting orders. Bottom line: Many military couples have options – e.g. file in Illinois where stationed, or in their state of domicile. They should discuss with counsel which jurisdiction’s laws are more favorable for their issues (property division, support, etc.) and ensure the chosen court can lawfully address all aspects of their case (especially pension division).

Servicemembers Civil Relief Act (SCRA) Protections in Divorce The Servicemembers Civil Relief Act (SCRA) is a federal law providing active-duty military personnel with protections in civil proceedings, including divorce and family cases 7 . Illinois courts honor these protections fully. Key provisions include:

• Stay of Proceedings: If a servicemember’s military duties materially affect their ability to participate

in the case, they have a right to request a stay (delay) of the proceedings. Courts will typically postpone hearings and deadlines for at least 90 days upon proper request, and can extend stays as long as the military service continues to interfere 5 . In fact, Illinois law expressly allows courts to postpone a divorce while a servicemember is deployed, and even for up to 60 days after return from deployment 5 . This prevents a deployed spouse from being disadvantaged by not appearing. (The servicemember can waive this delay if they wish to proceed despite deployment 5 .)

• Default Judgment Protections: A divorce cannot proceed to a default judgment against an

absent servicemember until the SCRA’s requirements are met. Before any default, the court requires an Affidavit of Military Service affirming whether the respondent is in military service 7 . This affidavit (sometimes called a “military affidavit”) is typically filed by the spouse or their attorney at the time of seeking a default. It states under oath that the respondent is not on active duty, or if the status is unknown, that due diligence was used to determine it 8 9 . Illinois courts will not enter a default divorce judgment without this affidavit on file, per SCRA and court rules 7 . If the affidavit shows the defendant is in military service, the court must appoint an attorney to represent the servicemember’s interests before any default can be entered (and usually the case will be stayed). Practical tip: Always run a search on the Department of Defense’s SCRA website for your spouse’s active-duty status and include that proof with the affidavit 10 .

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• Cook County Military Calendar: In Cook County (Chicago), a special “Military Calendar” exists to

handle cases with deployed servicemembers 2 . A servicemember (or their attorney) can petition to transfer the case to this calendar by showing proof from their command (e.g. a letter from a JAG officer or unit commander) that military duties prevent their participation 11 . Once on the military calendar, the case is essentially frozen – no hearings or default will proceed – until 60 days after the servicemember’s return or until they are able to participate 12 . All existing orders (like temporary support) remain in effect in the interim 13 . This local practice is in line with SCRA but provides an organized way to manage dormant cases due to deployment.

• Combat Zone and Other Extensions: If the servicemember is in a designated combat zone or

contingency operation, additional extensions often apply. Federal law extends many deadlines (e.g. for tax filing, civil statutes of limitation) for at least 180 days post-combat service. Courts generally recognize that servicemembers coming out of combat may need extra time to get affairs in order. Under SCRA, judges have discretion to toll or suspend proceedings during combat deployments, and it would be exceedingly rare for an Illinois court to push a case forward while one party is on hazardous duty. The public policy is to protect those serving our country from legal detriment in their absence 2 .

• Notification to Command: Sometimes, if a servicemember is unresponsive, the spouse’s attorney

may send a courtesy notice to the servicemember’s commanding officer or military legal assistance office. The SCRA allows (and in some cases requires) the court-appointed attorney to contact the member’s chain of command to verify status and seek an appearance or military leave. Military commands can grant servicemembers leave to attend court or remote access to participate if mission permits. If a spouse is not cooperating and hiding behind SCRA unfairly, a court can require proof of inability to attend (as Cook County does by needing documentation from JAG/command) 11 . This balances the need to prevent abuse of SCRA stays. Sample Military Affidavit Language: Below is an example of how an affidavit as to military service might be worded in Illinois (to be signed under oath by the filing party): “I, Jane Doe, being duly sworn, state: I am the petitioner in this case. The respondent, John Doe, is not in active military service of the United States as of this date. I have verified this via the Department of Defense SCRA online service on 01/05/2025, which indicated ‘Status: Not on Active Duty’ (report attached). This affidavit is made pursuant to 50 U.S.C. §3931 and Illinois law. I understand that if this statement is false, the court may reopen any default judgment against an active servicemember.” If you cannot determine the spouse’s status, the affidavit should say so, and the court will typically require a bond or appointed counsel before default. Bottom line: Always address SCRA upfront – it is a mandatory step, not a mere formality 7 . Failing to do so can result in a default judgment being overturned later, even years later, if the absent spouse was in the military.

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Division of Military Retired Pay: USFSPA, the 10/10 Rule, and the Frozen Benefit Rule One of the most significant assets in a military divorce is often the servicemember’s military pension. Military retired pay is governed by federal law (USFSPA) but divided in state court as marital property. Illinois is an “equitable distribution” state – meaning marital property (including the portion of the pension earned during the marriage) is divided fairly, which often means 50/50 but not automatically 14 . What makes military pensions complex are the federal rules and unique calculations involved. Here are the key principles:

USFSPA and “Disposable Retired Pay” Basics The Uniformed Services Former Spouses’ Protection Act (USFSPA) (10 U.S.C. § 1408) is the federal law that authorizes state courts to treat military retired pay as divisible property 15 . It defines “disposable retired pay” as the gross retirement pay minus certain deductions: specifically, amounts waived for VA disability, debts owed to the government, court-martial forfeitures, and SBP premiums 16 . Illinois courts can only divide the “disposable” portion 15 . Practical effect: if the servicemember is receiving VA disability and has waived $1,000 of retired pay to get it, that $1,000 is off-limits – it cannot be counted in the marital division 14 . (We address disability more below.) Under USFSPA, the maximum share of retired pay that can be paid to the former spouse via direct payment from DFAS is 50% of the disposable retired pay 14 for property division. (This cap can increase to 65% if child support or alimony are also being collected from pay, but pure property division is capped at 50%.) Note this is a limit on what DFAS will send directly, not necessarily the limit on what a court could award. In theory, an Illinois court could award more than 50% of the marital portion to the spouse, but anything above 50% would have to be paid directly from the servicemember, not garnished by DFAS. 10/10 Rule (Direct Payment Eligibility): There is a common misconception that a spouse must have been married 10 years to get any share of military retirement. That’s false – Illinois courts will divide the marital portion of the pension regardless of marriage length. However, the 10/10 Rule affects how the spouse can get paid. If the parties were married for at least 10 years, during which the servicemember performed at least 10 years of creditable military service, then DFAS will pay the former spouse’s share directly to them 17 . This is immensely helpful, as it guarantees the spouse receives payments without depending on the ex to forward a check. If the marriage overlaps fewer than 10 service years, the court can still award a portion of the pension, but DFAS will not honor the order for direct pay 17 . The servicemember must then pay the share themselves (or via allotment). In practice, many attorneys will still send the order to DFAS; DFAS will respond with a denial of direct pay citing the 10/10 rule, and then the spouse must use state contempt remedies if payments aren’t made. Example: If a couple was married 8 years while the member served, the court might award, say, 25% of the pension to the spouse, but DFAS won’t send that 25% directly – the member is responsible to pay it each month. Jurisdiction and Consent: As mentioned earlier, USFSPA requires that the state court have jurisdiction to divide the pension by reason of the servicemember’s residence or consent, not just because the member is stationed there 3 . Illinois courts will include a finding in the divorce judgment or Military Pension Division Order (MPDO) reciting that “Jurisdiction is based on the member’s domicile in Illinois and/or the member’s consent to this division”. It’s important to have the servicemember explicitly consent if there’s any doubt –

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often done by participating in the case and approving the Marital Settlement Agreement. Failing that, an absent servicemember could later argue the pension division portion is invalid for lack of jurisdiction (though as a practical matter, if they were properly served and defaulted, Illinois will still assert jurisdiction, with USFSPA’s requirements being more of a DFAS concern). Retirement Systems (High-3 vs. BRS): Military retirement currently comes in two flavors. Members who entered service before 2018 (or who opted out of the new system) have the traditional High-3 retirement: a defined pension roughly equal to 2.5% of base pay per year of service, using the highest 36 months (3 years) of pay to calculate the base 18 . At 20 years, that’s 50% of the high-3 average; at 30 years, 75%, and so on. Those who entered after 2018 (or opted into the new plan) are under the Blended Retirement System (BRS). BRS pensions accrue at 2.0% per year of service (so 20 years = 40% of high-3 pay), but the member also receives government TSP contributions and matching during their career. For divorce purposes, this means BRS-era servicemembers have a smaller pension but a potentially substantial Thrift Savings Plan (TSP) account; both are marital assets if accumulated during the marriage. In an Illinois divorce, be sure to address the TSP (see below) in addition to the pension, especially for BRS members, so you’re not leaving half the retirement assets on the table.

The “Frozen Benefit” Rule (Federal NDAA 2017 Changes) In 2017, federal law changed how military pensions must be divided for still-serving members. The National Defense Authorization Act for FY2017 amended USFSPA to impose the so-called “Frozen Benefit Rule” 3 19 . Under this rule, when a servicemember is still on active duty (or in the Guard/Reserve) at the time of divorce, the court must calculate the marital share as if the member retired on the date of divorce (at their then-rank and years of service), with no credit for promotions or service after the divorce 20 21 . In other words, the benefit is “frozen” in time as of the divorce.

• How it works: The law directs DFAS to only honor orders that award the former spouse a

percentage of the member’s “hypothetical retired pay” at divorce. Specifically, DFAS will determine the retired pay using the member’s pay grade and years of service at divorce, and then apply any post-divorce cost-of-living adjustments (COLAs) to that figure up to the actual retirement date 22 21 . For example, if Captain Smith is an O-3 with 10 years of service at divorce, and his ex-spouse is awarded 50% of the marital share, the ex’s portion will be calculated as if Captain Smith retired as an O-3 with 10 years. If Smith serves 10 more years and retires as an O-5, his ex will not share in the O-5 pay rate or the extra 10 years of accrual – those are non-marital. The ex only gets COLA increases on the frozen O-3/10-year amount 19 21 .

• Impact on division: This rule can significantly reduce the portion the former spouse ultimately

receives compared to what it would have been under the old method (where the spouse would benefit from the servicemember’s promotions and service longevity until actual retirement). To illustrate: if a couple divorced at year 10 of service and the spouse was awarded 50% of the pension earned during the marriage, under the old method the spouse might receive 25% of the final pension (if the member served 20 years) 23 . Under the new frozen method, if the member actually serves 30 years, the spouse would end up with effectively 16.5% of the final pension (because the marital portion is 10/30 = 33.3%, half of which is ~16.7%) 24 . The servicemember keeps the benefit of post-divorce promotions/raises.

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• Illinois application: Illinois courts comply with this federal mandate. The Military Pension Division

Orders now use a formula referencing the member’s rank and years at divorce. For instance, an order might state: “[Former Spouse] is awarded 50% of the Marital Portion of [Servicemember]’s disposable military retired pay. The Marital Portion is the fraction of retired pay whose numerator is the number of months of marriage overlapping military service, and whose denominator is the total number of months of creditable service as of the date of dissolution.” DFAS will fill in the denominator with the service time at divorce and apply COLAs 22 21 . Important: Because DFAS will only pay out using the frozen formula, if parties agree to a different division (like a percentage of the future retirement or a flat dollar amount), the servicemember might have to pay the difference directly 25 . For example, if an Illinois court (or agreement) tried to give the ex-spouse 50% of the actual pension at retirement, DFAS would still only pay 50% of the frozen marital share; the ex-spouse could then attempt to enforce the excess via contempt (somewhat murky legal territory post-Howell, discussed below).

• Practice tip: As the servicemember, the frozen benefit rule is beneficial – it incentivizes filing the

divorce sooner if a breakup is inevitable, so that less of your future retirement is shared 26 . As the spouse, be aware you’re getting a smaller slice of a smaller pie. Spouses (through counsel) can attempt to negotiate an offset: e.g. a slightly larger percentage of the marital share, or more of other assets, to compensate for the fact that the pension division is “truncated” at divorce 27 . Illinois courts could also consider this in equitable distribution – for instance, awarding the spouse a greater share of marital property if the pension division seems unfairly low due to freezing. However, there’s no Illinois case law (yet) explicitly adjusting distributions because of the frozen benefit rule; it’s usually a negotiation point. In summary, the Frozen Benefit Rule is a major change that limits the portion of the pension a former spouse receives, locking it to the servicemember’s rank/years at divorce 21 . All Illinois divorce decrees for active personnel should incorporate this, as DFAS will reject orders that don’t comply.

Calculating the Marital Share: Time Formula vs. Points for Guard/Reserve Illinois traditionally uses the “time rule” (Hunt formula) to determine the marital portion of a pension: the ratio of years (or months) of service during the marriage over total years of service 28 . This works well for active-duty retirements where each year of service accrues benefits uniformly. For example, if a couple was married for 15 of the servicemember’s 20 years of active service, the marital portion is 15/20, and the court might award the spouse half of that (i.e. spouse gets 37.5% of the pension). This approach was established in Illinois in cases like In re Marriage of Hunt (1979) and remains standard 29 . However, for Reserve or National Guard members, retirement is based on points, not simply years. Guard/ Reserve members earn points for drills, active training, deployments, etc., and need a certain number of points for a “good year” towards retirement. The value of the retirement is tied to total points accumulated (360 points roughly equates to one year of active-duty credit). In such cases, using a straight years-ofservice fraction can be misleading – e.g. someone could be in the reserves for 20 years but with varying points each year. Illinois addressed this in In re Marriage of Kirk (an unpublished appellate decision discussed by practitioners) where the court decided it was more equitable to calculate the marital fraction using points earned during the marriage over total points earned, rather than years 30 31 . In Kirk, the husband was a reservist

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with many years beyond the marriage. The trial court, affirmed on remand, used the point method, finding that “the mere passage of time was not what created retirement benefits or made them more valuable. The points themselves directly contributed to the value.” 32 By using points, they got a precise marital share. In that case, the marital portion came out to 44% of the total points (1,360 marital points out of 3,084 total) and thus the ex-wife received 22% of the pension (half of 44%) 33 . Practice tip: When dividing a Reserve/Guard pension in Illinois, strongly consider using the point fraction method in the court order. DFAS will accept point-based formulas as long as they’re clearly stated. For example: “Marital share = 1,360 points (earned from date of marriage to date of divorce) / 3,084 points (total earned as of retirement). [Former spouse] is awarded 50% of that marital share of disposable retired pay.” This ensures the division reflects the true marital portion. If you use just years, you might over-count or undercount the benefit. (Illinois has no published case directly on point vs. time rule, but the reasoning in Kirk was persuasive and in line with other states’ approaches 34 .)

Sample Pension Division Clause (DFAS-Compliant) Drafting the Military Pension Division Order (MPDO) or the divorce judgment’s pension clause requires precision. DFAS has strict requirements on language. A DFAS-compliant clause in an Illinois case typically looks like: “[Former Spouse] is awarded ___% of the Marital Portion of [Servicemember]’s disposable military retired pay, to be paid if, as, and when such retired pay is paid. The Marital Portion is defined by a fraction: the numerator is the number of months of marriage during which [Servicemember] performed creditable military service (from [date] to [date]), and the denominator is the total number of months of [Servicemember]’s creditable military service. [Former Spouse]’s share shall be calculated based on [Servicemember]’s pay grade and years of service at the time of divorce, per 10 U.S.C. §1408(a)(4), and shall include cost-of-living adjustments (COLAs) granted between the date of divorce and the date of retirement.” In practice, you fill in the dates and the fraction. Often it ends up as something like: “Spouse shall receive 50% of the marital share of the Member’s disposable retired pay, the marital share being /.” An example from a legal resource shows how the fraction is expressed and filled in at retirement by DFAS 35 : “The spouse shall receive 50% of the marital share of the service member’s disposable retired pay. The marital share is the fraction, the numerator is ____ months of marriage during the service member’s creditable military service, divided by the total number of months of the member’s creditable military service.” 35 This language ensures DFAS will compute the percentage at retirement. Always specify “disposable retired pay” and include that the award will include COLAs – otherwise DFAS assumes it does not include COLAs by default (and the spouse’s share could be frozen without COLA, which you usually do not want). Also, the order (or accompanying documents) should state that the 10/10 rule is met if you want direct pay – e.g. “The parties were married for at least 10 years during which the member performed at least 10 years of creditable service (10/10 requirement), making the former spouse eligible to receive payments directly from DFAS.” If the marriage was shorter, you can include language for clarity that “Although the 10/10 direct pay requirement

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is not met, the member shall pay the former spouse’s share directly.” DFAS will not enforce that last part, but it’s good to have it in the judgment to hold the member accountable. It’s wise for attorneys to consult the DFAS “Attorney Instructions” guide for military pension orders and even send a draft to DFAS for review if time permits. An improperly drafted order can delay payments for months or years, so double-check everything. Illinois law allows the court to retain jurisdiction to enter an MPDO after the divorce if needed, but best practice is to get it right the first time.

Survivor Benefit Plan (SBP) Elections in Divorce The Survivor Benefit Plan (SBP) is a annuity program that allows a military retiree to provide a continued income to a designated beneficiary (typically a spouse) after the retiree’s death. In a divorce, deciding what to do with SBP coverage is crucial. Without SBP (or life insurance in lieu), the former spouse’s right to pension payments ends when the servicemember dies – even if the member was paying the ex a share of the pension up until that point. SBP can guarantee the ex-spouse continues to receive up to 55% of the retiree’s pay for life. Here’s what you need to know:

• One Beneficiary, Big Decisions: A servicemember can only have one SBP beneficiary at a time 36 .

It’s usually a spouse or former spouse (or a child, in some cases). In a marriage, the spouse is typically the automatic beneficiary. After divorce, the member can elect “former spouse SBP coverage” to keep the ex as beneficiary. This must be done within one year of the divorce. The court can order the member to do this, and the ex-spouse can send a deemed election form to DFAS within that same year to enforce it if the member drags their feet 37 . If no former-spouse coverage is elected, the SBP may default to no coverage (or a new spouse if the member remarries, after one year of that marriage).

• Premiums and Coverage Amount: SBP is not free – the premium is 6.5% of the chosen base

amount (usually the full retired pay). This premium is deducted from the retired pay before the “disposable retired pay” division. (Notably, SBP premiums are one of the allowed deductions from “disposable retired pay” under USFSPA 16 , meaning both parties in effect share the cost: the cost is taken out, then the remainder is split per the pension division.) The annuity paid to the beneficiary is 55% of the covered retired pay. Example: If the retired pay is $2,000/month and SBP is elected for the full amount, the premium is $130, leaving $1,870 disposable pay to split per the order, and if the retiree dies, the ex would get $1,100/month (55% of $2,000) as long as they live.

• Duration and Remarriage Clause: If a former spouse is the SBP beneficiary, that coverage

continues for their life unless they remarry before age 55. A remarriage before 55 suspends the SBP coverage (it can be reinstated if that later marriage ends by death or divorce). If the former spouse remarries at 55 or older, SBP is unaffected 38 . Also, if the former spouse dies before the member, the SBP coverage is lost – the member cannot name a new beneficiary (because former-spouse coverage was locked in) and the premium stops, but no one gets the benefit 39 . These possibilities must be considered.

• Illinois Practice – Who Gets SBP? Illinois courts have the power to award SBP coverage as part of

the property distribution or as a form of maintenance/security. Many divorce decrees require the servicemember to maintain the former spouse as SBP beneficiary, especially if the pension is being divided. This ensures the spouse’s share doesn’t vanish upon the member’s death. However, SBP is a

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valuable asset in itself (it’s essentially a life insurance/annuity backed by the government). If a significant portion of the pension is non-marital (e.g., much service before the marriage), or the member has other plans (like providing for children or a new spouse), Illinois courts might not automatically give the SBP to the former spouse. A notable case example is In re Marriage of Coviello, an Illinois case that addressed SBP when the pension was partly non-marital 40 41 . In Coviello, the husband had served ~12 years before marriage and ~11 years during the marriage, so over half the pension was non-marital 40 . The court recognized that military law does not allow “splitting” the SBP – it’s all or nothing to one beneficiary 36 41 . If they gave the former spouse (the wife) the SBP, she’d get 100% of the survivor coverage, including on the non-marital portion, and if she remarried young or died, the benefit would extinguish without value to the husband’s side 39 42 . On the other hand, giving it to the servicemember (so he could perhaps cover a future spouse or child) meant the former wife loses out on the survivor protection for even the marital share. The court’s solution was creative: it awarded the SBP to the servicemember, and to compensate the wife for losing that survivor coverage on the marital portion, the court ordered the husband to purchase a life insurance policy with the ex-wife as beneficiary, at his expense, until their minor child was emancipated 43 44 . The life insurance amount was meant to cover the value of the wife’s share of SBP that she didn’t receive. This way, the husband could keep the SBP (and later name a new spouse or whomever as beneficiary), and the wife had some security that if he died while obligations remained, she’d get the insurance payout 43 45 . Also, by giving SBP to the husband, his retired pay wasn’t being reduced by SBP premium solely for the ex’s benefit (which the court noted would be unfair when more than half the pension was his non-marital) 41 45 . The Coviello approach shows Illinois courts will weigh equitable factors with SBP. If the marriage covered the entire military career, it’s more likely the ex-spouse will be awarded SBP coverage outright. If not, courts may consider alternatives like partial compensation or other security.

• Negotiation and Cost-sharing: Parties are free to negotiate SBP as part of their settlement.

Sometimes the servicemember will agree to maintain the ex as SBP beneficiary if the ex agrees to pay the premium cost (by reimbursing the member or taking a slightly smaller share of the pension). Remember, SBP premium comes out pre-division, effectively both share the cost unless otherwise compensated. Another scenario: if the servicemember is close to retirement or already retired, SBP can be a point of negotiation with other assets – e.g. the spouse might accept a smaller percentage of the pension in exchange for being kept on SBP. Each case is different; attorneys often calculate the present value of SBP to the spouse and use that in bargaining. Practice pointers: If SBP is awarded to the former spouse, include clear language in the decree: “[Member] shall elect Former Spouse coverage under the Survivor Benefit Plan with [Spouse] as beneficiary, with a base amount of ___ (full retired pay unless otherwise specified). [Member] shall execute DD Form 2656-1 and any other required documents and cooperate in submitting them to DFAS. [Spouse] may submit a deemed election (DD Form 2656-10) within one year of entry of this Judgment. The cost of the SBP premium shall be borne [by the Member/ from the gross retired pay – note: by law it’s deducted before division]. [Member] is restrained from changing or terminating SBP coverage except as provided by law or further order of court.” Also, follow up: After the divorce, make sure the forms are sent to DFAS within that 1-year window. If the servicemember refuses, the former spouse must send in the deemed election request within one year, or else lose the SBP right forever. Mark that deadline on your calendar at judgment time!

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If SBP is not feasible or not awarded, consider life insurance or an annuity to protect the former spouse’s income stream. Illinois courts can order a party to carry life insurance to secure obligations (e.g. maintenance or pension payments) in some cases, and it’s wise to negotiate that if SBP isn’t used. In summary, SBP is a unique asset: it’s extremely valuable (government-guaranteed, inflation-adjusted income) but comes with all-or-nothing limitations. Both parties should understand the trade-offs. And if you’re the servicemember, note that if you do give SBP to your ex, you cannot enroll a new spouse in SBP down the line unless the former spouse coverage is stopped (which would require the ex’s consent or other narrow circumstances). This can affect future financial planning and remarriage decisions, so choose carefully during the divorce.

Thrift Savings Plan (TSP) vs. Civilian Retirement Accounts In addition to the pension, many servicemembers contribute to the Thrift Savings Plan (TSP) – the federal government’s version of a defined contribution plan (similar to a 401(k)). Under the newer Blended Retirement System, servicemembers get automatic and matching contributions to TSP, making it a significant asset. TSP division in divorce has some special features:

• Separate Order Needed: The TSP isn’t divided by the standard state QDRO (Qualified Domestic

Relations Order) used for private plans because TSP is governed by federal law (5 U.S.C. § 8435). Instead, it requires a “Retirement Benefits Court Order” (RBCO) specifically for TSP 46 . Illinois courts will typically either incorporate TSP division terms in the divorce judgment or approve a separate consent order for the TSP. The order must then be sent to the TSP plan administrator in Alabama for processing.

• Contents of the Order: A TSP order must clearly specify the award to the former spouse. It can be

a dollar amount (e.g. “$50,000 of the Thrift Savings Plan account as of a certain date”) or a percentage or fraction (e.g. “50% of the account balance as of [date]”). Often we use a marital fraction approach: “[Spouse] is awarded one-half of the TSP account balance attributable to contributions made between [date of marriage] and [date of divorce], plus earnings and losses thereon until distribution.” 46 . The TSP will honor orders that include earnings/losses if explicitly stated – meaning the spouse’s share will be adjusted for market gain or loss from the valuation date to the distribution date. If you want the division to be as of a certain date, say so; otherwise, the default is typically the date the order is processed.

• Outstanding Loans: Servicemembers can borrow from their TSP. An outstanding TSP loan is not

considered a reduction of the account balance for division purposes – the plan will treat the pre-loan balance as part of the account. The Illinois court should decide how to account for a TSP loan. For example, if a servicemember took a $20,000 TSP loan right before divorce, effectively reducing the account, a court might assign that loan to the servicemember’s side of the ledger (so the spouse isn’t penalized for it) 47 . One way is to state: “In determining the amount to be transferred, the outstanding loan of approximately $20,000 shall be added back to the account balance before applying the percentage to [Spouse]. [Servicemember] shall be solely responsible for the TSP loan debt.” If you do nothing, the TSP will still calculate the share off the gross account (as if the loan amount is still there, since technically the loan is an advance to the participant). This can lead to the odd result of a spouse getting a portion of an account that isn’t fully there unless the loan is repaid. Clarity in the order avoids disputes.

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• BRS Contributions: Under Blended Retirement, the government contributes up to 5% of base pay to

TSP for the servicemember. These contributions (and any growth) are marital if made during the marriage. The entire TSP account, regardless of source (member contributions, government match, rollover, etc.), can be divided by the court. Make sure to include all funds in the division unless some portion is clearly non-marital (e.g. the member had a TSP balance from before the marriage – that portion could be set aside as non-marital with evidence).

• Rollover and Tax Considerations: A TSP distribution pursuant to a divorce court order can be rolled

over by the former spouse into an IRA or other qualified plan without immediate tax. Typically, TSP will, upon processing the order, carve out the awarded amount and offer the former spouse a direct payment or rollover. If the spouse takes cash, it will be taxable to the spouse (and subject to 20% mandatory withholding). The 10% early withdrawal penalty does not apply to distributions to the alternate payee (former spouse) incident to divorce – similar to private 401(k) rules. However, if the spouse later withdraws after rolling to an IRA, penalties could apply if they are under 59½. It’s usually best to roll over the funds to avoid taxes.

• Procedural Tips: The TSP has a model order checklist on their website. At minimum, the order must

contain: the participant’s name and SSN, the alternate payee’s name and SSN, the plan name (Thrift Savings Plan), and a clear formula or amount. It should be signed by the judge after the divorce date (the TSP can’t process it prior to divorce). The order should also specify if the award is to come from the traditional balance vs. Roth balance if applicable (if not specified, they’ll take pro rata from each). Many servicemembers now have Roth TSP portions – be mindful, as those have different tax implications for the spouse (Roth portion would transfer as Roth funds).

• Don’t Overlook TSP in Negotiations: In some cases, the TSP can be as valuable as the pension (or

more so, if the member leaves service before retirement). It’s marital property and divisible just like a 401(k) 46 . Practically, TSP is often easier to value than a pension because it’s an account with a balance. Parties might agree to trade assets: e.g. “You keep your TSP, I keep a greater share of the house equity,” etc. That’s fine as long as it’s an informed decision. But an uninformed spouse may not even know about the TSP – attorneys must do thorough discovery on all accounts (including checking if the member also has other federal benefits like a legacy CSB account or an active duty bonus that was deposited). In summary, dividing a TSP is similar to dividing a civilian retirement account, but use the right terminology and don’t assume a generic QDRO will work. Illinois practitioners commonly include a TSP section in the marital settlement agreement and then submit a separate order to the court (which is then sent to TSP). Once the order is accepted, TSP will freeze the account for processing and then distribute the funds, which typically takes 60-90 days. (Note: Federal employees (FERS) and military share the TSP program. But a military member could also have a separate Blended Retirement Continuation Pay or Thrift Savings Plan spillover – beyond scope here. Just ensure all retirement assets are accounted for, including any reserves points that might convert to a FERS annuity if they have dual service.)

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VA Disability Pay and Other Military Benefits: Divisibility and Developments VA Disability Pay: Many servicemembers receive Veterans Affairs (VA) disability compensation for service-connected injuries. This income is tax-free and often elected in lieu of a corresponding amount of military retired pay (because one cannot double-dip full military pension and VA disability for the same period of service – most waive retired pay dollar-for-dollar to get the VA pay). For divorce purposes, VA disability pay is not treated as marital property divisible upon divorce 14 . Federal law (38 U.S.C. § 5301 and related) explicitly makes VA benefits immune from “assignment, levy, or seizure”, and the US Supreme Court in Mansell v. Mansell confirmed that states cannot divide VA disability as an asset 48 49 . In practical terms, if a retiree has waived $500 of retired pay to receive $500 of VA disability, that $500 is subtracted out of the “disposable retired pay” pot before the marital division 16 14 – the ex-spouse simply doesn’t get a share of that portion. Moreover, in Howell v. Howell, 581 U.S. ___ (2017), the Supreme Court held that if a servicemember after divorce waives a portion of retired pay to start receiving VA disability (for example, many start drawing VA benefits only upon retirement), the former spouse’s share of the pension is accordingly reduced, and the state court cannot order the servicemember to “indemnify” or compensate the former spouse for that loss 50 51 . This overruled some state practices that required veterans to reimburse ex-spouses when such waivers occurred. Illinois Position on Indemnification: Prior to Howell, Illinois courts (like in In re Marriage of Wendt (2013) and In re Marriage of Wojcik (2005)) sometimes approved settlement clauses requiring the servicemember to compensate the ex-spouse if they took actions to reduce the pension (such as electing VA disability or early retirement) 29 52 . Those clauses, often called VA indemnification clauses, are now on shaky ground. After Howell, it’s clear that a state court cannot directly order a veteran to pay the same amount the ex lost due to the VA waiver, as that amounts to dividing the VA benefit by other means 48 53 . Some courts have interpreted this to void such clauses; others have left room for creative solutions (e.g. adjusting spousal maintenance if appropriate or if agreed as part of property division). In 2024, an Illinois appellate case (Tronsrue, 2024 IL App (3d) 220125) addressed an old divorce judgment that divided disability pay. The court noted that even if a divorce agreement or order from the 1990s violated federal law by dividing VA disability, the order was not void for lack of jurisdiction – but it also suggested the provision could not be enforced due to federal preemption 54 48 . Essentially, if an exspouse tries to enforce a clause to get a share of VA disability, Illinois courts must follow federal law: the Supremacy Clause prevents enforcing any assignment of those benefits 48 53 . In practice, most decrees now simply acknowledge that the court lacks authority over disability pay. Counting VA Disability as Income for Support: While VA disability is off-limits in property division, it can be considered as income for child support or spousal support. The U.S. Supreme Court in Rose v. Rose (1987) held that states may enforce support obligations even if the paying parent’s only income is VA disability, reasoning that disability benefits are intended to support the veteran and their dependents. Illinois includes “all income from all sources” when calculating support 55 , and that would encompass VA disability payments. So, if a retired servicemember is getting $3,000/month VA disability and no longer any pension, Illinois courts can and will calculate child support or maintenance based on that $3,000 (plus any other income). They could even garnish those funds by ordering the veteran to pay support (VA disability

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itself generally cannot be directly garnished unless the veteran waived retired pay to receive it, in which case an apportionment through the VA or a contempt order can be used – a technical point). The key is: VA benefits = income for support, but not property for division. Concurrent Receipt Programs: Some military retirees receive both pension and disability via programs like Combat-Related Special Compensation (CRSC) or Concurrent Retirement and Disability Pay (CRDP). CRSC is not disposable retired pay (it’s a special compensation) and is non-divisible; CRDP is essentially restoration of retired pay and is divisible (it’s just a full pension for those with smaller disability ratings). These details are beyond scope, but an Illinois attorney should be aware of them if representing a retiree: CRSC, if received, will reduce disposable retired pay available to split, and ex-spouses often are blindsided by how these federal programs affect their share. Clear drafting to address who bears the consequence (usually the spouse unfortunately) is recommended. Other Military Benefits Non-Divisible: Certain benefits are personal to the servicemember and not divisible, but may have value to consider:

• GI Bill/Education Benefits: Post-9/11 GI Bill education benefits can sometimes be transferred to a

spouse or children during service, but they are not a marital asset to be divided. If not transferred before divorce, an ex-spouse generally can’t claim it. Illinois courts treat GI Bill benefits as an expectancy or bonus tied to service – not something to split (though if a spouse paid for the member’s schooling assuming GI Bill for kids, it could be a factor in equity).

• Special Pays and Bonuses: While not divisible as property, any accrued unpaid bonuses (e.g.

reenlistment bonus) or accumulated leave that gets cashed out at separation might be part of marital property if earned during marriage. For example, if a servicemember is divorcing while having a $20k reenlistment bonus commitment payable after divorce, the court might adjust property division or support knowing that money is coming (if marital). Same for terminal leave – if they get paid out for 60 days of leave earned during marriage, that payout can be considered marital funds.

• SGLI Life Insurance: Servicemembers Group Life Insurance (SGLI) is a federally provided life

insurance (up to $500k coverage) which cannot be assigned or divided by state courts (per federal law and the case Ridgway v. Ridgway). A servicemember can change the beneficiary at any time, regardless of divorce decree, and the last signed beneficiary form will control, even if it contradicts a divorce agreement. Illinois courts will not (and cannot) force a servicemember to maintain an exspouse as beneficiary on SGLI. Instead, if life insurance is desired for security, the divorce should mandate a commercial life insurance policy for which the ex-spouse is owner or irrevocable beneficiary, to avoid federal preemption issues. Keep an eye on this if your client is the non-military spouse – you can’t rely on SGLI promises; get a private policy or a provision that the member will convert SGLI to VGLI (Veterans Group Life) or similar and keep it for the ex if intended. In summary, VA disability and related benefits are protected for the servicemember. Illinois law follows federal mandates on this: such benefits are excluded from the marital estate 14 . The focus in negotiations often shifts to giving the spouse other assets or a slightly larger share of the pension to make up for the fact that, say, a portion is off-limits due to disability. Attorneys should also educate the spouse: sometimes ex-spouses mistakenly believe the member is “hiding money” by getting disability – but it’s simply the law that those funds can’t be shared. Conversely, servicemembers should know that they cannot evade

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support by saying their income is “just VA disability”; Illinois courts will use it to calculate support obligations 55 56 .

Child Support and Basic Allowance for Housing (BAH) – Is Military Pay Treated as Income? When it comes to child support (and spousal maintenance) in Illinois, all forms of military pay count as income. This includes Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), combat pay, flight pay, bonuses – essentially “all income from all sources” as the Illinois statute says 55 . Military allowances are not taxable, but that doesn’t exclude them from support calculations. Illinois case law settled this long ago: in In re Marriage of McGowan (Ill. App. 1994) and In re Marriage of Baylor (Ill. App. 2001), the courts made clear that BAH and BAS must be included in gross income for child support 55 57 . The rationale is that these allowances reduce a servicemember’s living expenses (housing, food) and effectively increase their ability to pay support. The Fourth District in Baylor even expressed frustration it had to address this again after McGowan, emphasizing “Include all military allowances in income. Period.” 58 Example: Suppose an Army staff sergeant earns \$4,000/month base pay, \$1,200 BAH, and \$300 BAS. For child support, Illinois would take the combined \$5,500 as gross income (plus any other income like special pays). The fact that BAH is not taxed only comes into play when converting gross to net income under the guidelines – since no federal or state tax is paid on BAH/BAS, those portions remain fully in net income. This often means a servicemember’s “net income” for support can be proportionally higher than a civilian with the same gross, because a big chunk is untaxed. Illinois’ income shares model (since 2017) uses both parents’ net incomes to determine support, so both the military and civilian incomes are considered. But rest assured, the military allowances will be in there 56 . BAH Variations: One nuance – not all BAH is equal. Some members receive BAH-With Dependents, some BAH-Without, and some receive BAH-Differential (BAH-Diff) if they pay child support but live in barracks. Regardless of type, it’s considered income. If a member has no dependents and lives on base, they get no BAH (instead they have free housing). Courts can’t add “imputed” income for the value of base housing directly, but practically the servicemember’s expenses are lower, which could be a reason to deviate from guideline support if appropriate. Typically though, unless there’s an extreme scenario, courts just stick to actual cash income. If a member is receiving BAH-Diff because they pay child support and live in government quarters (a scenario where the military gives a small allowance solely to help with child support), that BAH-Diff is actually pegged to the support amount. It’s still income, but it exists only because they have a support obligation, so it’s a bit circular. Usually, we include it, then if the numbers come out oddly, argue deviation. Child Support Enforcement via Military Channels: Once an Illinois support order is entered, a military member parent is expected to pay like anyone else. The difference is, the Defense Finance and Accounting Service (DFAS) can facilitate payment. If the member is on active duty, the custodial parent can obtain an income withholding order and send it to DFAS, which will deduct child support directly from the servicemember’s pay (up to 50-65% of disposable earnings, which include basic pay and many allowances). The military also has regulations requiring servicemembers to support their dependents even absent a court order (each branch has interim support rules). Additionally, the servicemember’s commanding officer can be notified if they fail to pay support; the military takes family support seriously as a matter of

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discipline, and a soldier/airman/sailor/Marine can face administrative action for failing to support their children. Federal law allows garnishment of military pay for child support arrears, and even VA disability can be apportioned to dependents through the VA if the veteran won’t support their child (though that’s an administrative process). The big picture: being in the military doesn’t shield one from child support—if anything, it provides more avenues to enforce payment (allotments, garnishments, command pressure). Spousal Maintenance (Alimony): Illinois maintenance calculations also use gross and net income similar to child support. Again, all military pay counts. There is a cap on combined income for the guidelines (currently around \$500k) – above that, it’s discretionary. For many career military (especially officers), incomes might not hit that cap, but note an O-5 or O-6 with 20+ years could be earning a six-figure salary plus allowances. Maintenance can be affected by the taxability of income: BAH/BAS not taxed means the payor’s net income is higher and the payee’s received maintenance (which in divorces after 2019 is nontaxable to the recipient under federal law changes) comes from after-tax dollars of the payor. It’s complicated, but practically, attorneys just plug in all income sources into the formula and see where it lands. Deviation Factors: Illinois law allows deviation from guideline support if it would be inappropriate or inequitable (considering factors like the child’s needs, standard of living, etc.). In military cases, one might argue for a deviation if, say, the servicemember receives particularly high non-taxable allowances relative to actual expenses or if the custodial parent enjoys on-base housing privileges (rare scenario: e.g. custodial parent is a servicemember new spouse living on base, which could lower their need). These are case-bycase. For the most part, courts stick to the numbers, which already account for tax differences by using net income calculations 59 57 . College and Extra Expenses: Another area: the military offers benefits like the GI Bill or tuition assistance which could cover a child’s college costs. While not “income,” this is something to consider in negotiating college expense divisions under 750 ILCS 5/513. For example, if a servicemember has unused GI Bill benefits, the parties might agree to use that for the child’s education in lieu of or in addition to Section 513 contributions. It can’t be ordered because it’s not an entitlement the child can claim, but it’s a valuable resource. TL;DR on BAH: Illinois will count BAH/BAS and all pays as income for support 55 . A servicemember parent cannot argue that their housing allowance shouldn’t count because it’s “an allowance” – the law is settled on this. So budgets and support should be planned accordingly. Conversely, the spouse receiving support should understand that if the servicemember’s BAH changes (for instance, after divorce, if the member’s dependency status changes from with-dependents to without, their BAH might decrease), that could warrant a modification if the income significantly drops. Always exchange LES (Leave and Earnings Statements) to keep track of actual pay.

Child Custody and Deployment: PCS Moves, 50-Mile Rule, and Family Care Plans Military service often adds unique challenges to child custody (allocation of parental responsibilities and parenting time). Illinois law has evolved to address some of these issues, particularly when a parent is deployed or needs to relocate on military orders.

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Relocation and the “50-Mile Rule”: Illinois’ relocation statute (750 ILCS 5/609.2) sets distance thresholds for when a move by a custodial parent requires notice and court approval. Commonly known as the 25/50mile rule, it provides: if a child’s primary residence is in Cook, DuPage, Kane, Lake, McHenry or Will County, a move over 25 miles is a “relocation” requiring consent or court approval; if the residence is in any other Illinois county, a move over 50 miles (or out of state over 25 miles) triggers the relocation rule 60 61 . For military families, this usually comes up when a servicemember is reassigned (PCS orders) to a base in another state or far part of Illinois, or when the civilian parent wants to move back home for support while the servicemember is deployed.

• If the servicemember is the primary custodian and receives PCS orders beyond the 25/50-mile

range, they cannot simply take the child and move. They must either obtain the other parent’s written agreement or file a petition to relocate and prove to the court that the move is in the child’s best interests. Military necessity alone is not automatically considered “best interest,” but it’s a factor (e.g. stable employment, possibly better benefits for the child’s medical or schools on base). The court will weigh all best-interest factors – including extended family, educational opportunities, impact on the other parent’s time, etc. It’s important for the servicemember to propose a realistic post-move parenting schedule (perhaps offering longer visitation in summers, frequent virtual contact, travel cost-sharing). Illinois courts strive to allow moves that are genuinely in good faith and beneficial to the child, but if the move primarily benefits the parent’s career and would substantially harm the child’s relationship with the other parent, the court may deny it.

• If the civilian parent is primary and wants to move (perhaps to follow the servicemember

spouse to a new duty station or after divorce to be near family), the same rules apply. Often, if one parent is military and moves frequently, courts lean towards granting the stable parent (if rooted in Illinois) majority custody to avoid repeated disruptions. But if, for example, a servicemember who had the child in Illinois gets stationed elsewhere and the custodial civilian parent wants to relocate closer to that base so the child can maintain a relationship, the court might approve that if it means the child will see both parents more.

• 50 miles within Illinois vs. out-of-state: Notably, a move from Scott AFB, IL to just across the river

in Missouri might only be 20 miles, but because it’s out-of-state, it triggers the relocation statute (any out-of-state move over 25 miles). Conversely, a 40-mile move within central Illinois wouldn’t trigger it if staying in-state and outside the listed counties. Military bases near borders (e.g. living in IL but working in KY, etc.) can create odd scenarios. Always check if the relocation law is invoked. Deployment (Temporary Duty) and Custody Orders: Illinois recognizes that deployments are usually temporary and should not be used to permanently alter custody arrangements. The Illinois Marriage and Dissolution of Marriage Act provides that courts may enter temporary modifications of parenting orders due to a parent’s deployment and that such modifications must be made to expire at the end of deployment, with the prior order reinstated (unless a modification is then in the child’s best interest) 62 63 . In other words, a deploying parent can ask the court for a temporary order to ensure the child is cared for during deployment, and when they return, parenting time goes back to how it was. The law (since the 2016 family law overhaul) is meant to protect servicemembers from losing custody simply because of a service obligation.

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Key points on deployment and Illinois custody:

• Expedited Hearings: If a deployment is approaching, courts will try to expedite custody hearings or

let a deploying parent testify electronically before they leave. The goal is to address any needed changes in an orderly way rather than last-minute crises.

• Delegation of Parenting Time: Illinois allows a deploying parent to designate a substitute

caregiver for their parenting time in some cases. For example, a statute (based on the Uniform Deployed Parents Custody and Visitation Act, which Illinois has incorporated in part) permits a deploying parent to request that the court allow their family members (like grandparents) or a new spouse to exercise some visitation with the child during the parent’s deployment 64 65 . The court will consider the child’s best interests and existing relationships – e.g., it might grant that the paternal grandparents can have the child one weekend a month while the servicemember is deployed, to maintain the child’s connection to that side of the family. This was noted in practice: courts often permit a deployed parent to “ensure his or her parents and other family members can visit the child during deployment.” 65 This is not automatic – it must be requested and shown to benefit the child.

• Make-Up Parenting Time: Upon return, the formerly deployed parent may be entitled to “makeup” time to compensate for lost regular parenting time 66 . For instance, if the parenting plan gave

them every other weekend and summer, but they missed 6 months of that, the court might award additional time in the months after return to reestablish the bond (provided the child’s schedule allows). Illinois law encourages facilitating the child’s continued relationship with the deployed parent, so long as safe and practical.

• No Permanent Change Just Due to Deployment: The law explicitly says that a parent’s absence or

relocation due to deployment cannot by itself be used to justify a permanent modification of allocation of parental responsibilities. The temporary order stands in, and after deployment the status quo should resume unless there’s evidence unrelated to the deployment that a change is needed. For example, the other parent can’t claim the deployed parent “abandoned” the child and seek sole custody permanently – deployment is legally protected as an excusable absence. However, if during deployment something else changed (child thrived with other parent, etc.), the court can consider overall best interests after, but they cannot hold the military duty against the parent. Illinois shows this principle by not penalizing for inability to exercise parenting time due solely to military service 67 . Family Care Plans: All branches of the military require single-parent servicemembers (or dual-military couples) to maintain a Family Care Plan. This is a document that names one or more caregivers who will take care of the child if the servicemember is deployed, has extended duty hours, or is otherwise unavailable. The plan often includes short-term caregivers (for sudden deployments or emergencies) and long-term caregivers. While a Family Care Plan is a military requirement (to ensure readiness), it also has legal relevance in custody cases. Illinois explicitly added the “terms of a military parent’s pre-deployment family-care plan” as a factor for courts to consider in allocating parenting time 68 .

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This means if one parent is in the military, the court will look at who that parent has designated in their Family Care Plan to take care of the child during deployments. It’s a double-edged sword:

• If the plan names, say, the other parent (the ex-spouse) as the person who will take the child in

deployment, that could reassure the court that the servicemember is respecting the other parent’s role and facilitating the child’s care by the other parent. That’s positive for the servicemember’s case because it shows cooperation and a focus on the child’s best interest (the child stays with mom rather than a third party when dad deploys, for example).

• If the plan instead names, for instance, the servicemember’s new spouse or the child’s grandparents

instead of the other parent, that might raise a red flag. The court may ask, why wouldn’t the child be with their other legal parent if one parent deploys? Unless the other parent is unfit or unavailable, courts generally favor the child being cared for by the remaining parent rather than a non-parent. So a Family Care Plan that sidelines the other parent could hurt the servicemember’s custody argument, as it suggests they might not facilitate the child’s relationship with the other parent.

• On the flip side, if the other parent is unfit or unable to care for the child, the Family Care Plan can

show the servicemember has a solid backup (like a grandparent who is ready to assume guardianship). The court will consider that too – it’s better to have a thought-out plan than not. Illinois’ inclusion of Family Care Plans as a factor 68 essentially tells judges: look at how responsible and realistic the military parent is in planning for the child’s care. A well-crafted plan can ease concerns about the child’s welfare during deployments or long drills. A nonexistent or bad plan can be used by the other parent to argue the military parent’s lifestyle isn’t conducive to primary custody. Best Interest of the Child and Military Service: Aside from deployment, day-to-day military duties (overnight duty, trainings, moving every few years) can complicate parenting. Courts will consider:

• Each parent’s willingness and ability to make arrangements that minimize disruption. For example,

can the servicemember arrange off-base housing such that the child can stay in one school, or will the child be yanked around every PCS? If the servicemember is frequently transferred and the child is school-aged, the court might lean towards giving the more stationary parent primary residential custody, to give the child stability, granting the military parent generous visitation (e.g. school breaks, summers).

• The age of the child. A baby might travel with mom/dad on orders more easily than a teenager who is

rooted in activities.

• The support network. A servicemember often has access to base resources (daycare, youth activities,

TRICARE for health, etc.), which can be positives, but if stationed far from family, the lack of extended family nearby could be a negative compared to the other parent who lives near grandparents, etc. Illinois law is clear that a parent’s military service cannot be the sole factor to deny custody or visitation. It’s one factor among many in determining best interests 69 . For instance, a deployment itself is not evidence of unwillingness to parent – it’s a duty. Courts have empathy for that. But they also prioritize the child’s well-being, so they will seek solutions that allow the child to have a stable home life and continue a relationship with both parents.

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Communication Provisions: Modern parenting plans often include requirements for virtual visitation (video calls) especially relevant for military parents far away 70 . Illinois courts encourage reasonable electronic communication – e.g., a clause that a deployed parent may have a video call with the child once a week at a set time, or “liberal Skype/Facetime contact as the child’s schedule allows.” The Right of First Refusal (if one parent can’t watch the child during their time, they must offer the other parent the opportunity before a sitter) might need tailoring for military schedules 71 . For example, if a servicemember is often gone for short periods (24-hour duty), the parenting plan might say the right of first refusal doesn’t apply to short-term absences due to military duty, to avoid constant back-and-forth. Or it might specify thresholds (if gone more than 48 hours, offer the other parent the chance to keep the child). In sum, for military parents in Illinois: Plan ahead and be transparent. Provide the court with a family care plan, propose a detailed temporary custody order for deployments (including who will take care of the child and how transitions will happen), and show you will foster the child’s relationship with the other parent despite your service obligations. For the non-military parent: be understanding that the military lifestyle is demanding, but also assert your right to stability for the child. Illinois courts aim to balance these, often by giving the civilian parent primary residence during the service years and ensuring the military parent gets substantial time whenever possible (and doesn’t lose their rights due to deployment). With cooperation, many families even include provisions like “If Parent is deployed, child will reside with Other Parent; upon return, prior schedule resumes after a brief reintegration period; both parents will communicate to accommodate mid-tour leave visits,” etc. Remember, a well-thought-out agreement is better than a contested court decision, because you two know your family’s needs best.

Continued Health Care and Benefits for Former Spouses (TRICARE, CHCBP, Commissary) Military service comes with benefits beyond pay – notably healthcare (TRICARE) and commissary/exchange privileges. After a divorce, former spouses may lose eligibility for some benefits unless certain conditions are met, while children generally remain eligible as dependents of the servicemember. Here’s a breakdown: TRICARE for Former Spouses: TRICARE is the military’s health insurance. An ex-spouse’s eligibility for TRICARE after divorce depends on the duration of marriage overlapping service:

• 20/20/20 Rule: If the couple was married at least 20 years, the servicemember has at least 20 years

of creditable service, and those 20 years overlap (concurrent) 72 , the former spouse is a “20/20/20 spouse.” They continue to be eligible for TRICARE (and military medical facilities) for their lifetime, as long as they do not remarry and do not have their own employer-sponsored health coverage 73 74 . They also keep commissary and base exchange privileges 73 . In essence, a 20/20/20 former spouse is almost treated like a military retiree dependent even after divorce. They would get a new ID card as a former spouse. If they later remarry, they lose these benefits permanently (even if that subsequent marriage ends).

• 20/20/15 Rule: If the marriage was 20+ years, service 20+ years, but the overlap was at least 15

years (but less than 20), the ex-spouse is a “20/20/15 spouse.” They get one year of TRICARE coverage after the divorce 75 , provided they don’t remarry and have no employer insurance 76 . During that year, they also retain commissary/exchange privileges 76 . After one year, TRICARE ends,

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but they have the option to pay into a continuation plan (see CHCBP below). This one-year extension can be a helpful bridge for the ex-spouse to find other insurance.

• <15 Year Overlap: If the marriage and service overlap was less than 15 years, the former spouse

gets no continued TRICARE coverage after the divorce is finalized 77 . Their military medical benefits cut off (children, of course, remain covered – see below). However, they may be eligible for

Chcbp.

CHCBP (Continued Health Care Benefit Program): CHCBP is essentially a premium-based temporary health insurance (similar to COBRA for civilians) offered by the Department of Defense. A former spouse who loses TRICARE can purchase CHCBP coverage for up to 36 months (3 years) after divorce 78 . It’s not cheap – the premiums are like a private health plan – but it gives time to find alternative insurance. If the former spouse is a 20/20/20 who loses TRICARE due to remarriage, they can also use CHCBP potentially. In any case, enrollment must occur within 60 days of losing TRICARE eligibility 77 , so an ex-spouse should act quickly after the divorce. It covers roughly the same things TRICARE Standard would, but at full cost. Military Base Privileges: As noted, 20/20/20 former spouses keep commissary (grocery store) and exchange (retail store) privileges on base, plus MWR (Morale, Welfare, Recreation) facilities, etc., indefinitely until remarriage 73 . 20/20/15 spouses have those privileges during the one-year transitional period only 76 . Others lose access once the divorce is final. This can be significant – commissary shopping can save 30% on groceries, for example. However, it’s typically not worth structuring a divorce just to try to meet these rules unless you’re very close, because the rules are strict on dates. Practical Note: Sometimes couples will slightly delay a divorce to reach the 20-year overlap for the spouse’s benefit. For instance, if they’re at 19.5 years overlap, they might separate but not finalize divorce until the 20/20/20 is met so the spouse keeps lifetime TRICARE. This is a personal decision but something to be aware of if close to the threshold. Legally, there’s no requirement to do so, but it can be mutually beneficial (the servicemember isn’t paying for ex’s health insurance that way). Children’s Healthcare: Minor children remain eligible for TRICARE as military dependents, regardless of the divorce, because they are still the servicemember’s dependents. The divorce decree should specify who is responsible for carrying health insurance for the kids. Typically, if the servicemember is on active duty, they’ll continue to have the kids on TRICARE (there’s usually no additional cost). Illinois child support law requires that health insurance be provided if available at reasonable cost. TRICARE certainly qualifies (no cost). So usually the order will say the servicemember shall maintain the children on TRICARE, and both parents split uncovered medical expenses per Illinois guidelines (often 50/50 or pro rata by income). One contingency to address: if the servicemember leaves the military, TRICARE will end. The decree might require the other parent to then enroll the kids in their employer plan or the member to get veteran or private coverage for the kids. Cover that to avoid gaps. Also note, TRICARE offers dental (usually via a separate premium plan) and that could also be maintained. Post-Divorce Access: If the former spouse qualifies as 20/20/20 or 20/20/15, the servicemember should ensure the Defense Enrollment Eligibility Reporting System (DEERS) is updated to reflect the divorce and the ex’s new status. The ex will need a new ID card marking them as a former spouse (not as a current spouse). This is something to coordinate – sometimes language in the divorce that the servicemember will take the ex to the base Pass & ID office to get a new ID within X days is helpful.

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Life Insurance (SBP vs others): We covered SBP earlier for the pension. Separately, some servicemembers have FSGLI (Family SGLI) on their spouse – that’s life insurance on the spouse’s life. After divorce, FSGLI coverage on the ex-spouse terminates (since they cease to be a qualifying spouse). If an ex-spouse is concerned about losing that, they’d have to get their own policy. The servicemember’s SGLI (on themselves) can name anyone as beneficiary, but by federal law any designation to a now-former spouse remains valid unless changed – however, an obligation in a divorce to maintain life insurance must be on a policy the court can enforce (not SGLI). So often the member might get a commercial policy to satisfy any life insurance requirement for the benefit of the ex or kids, rather than rely on SGLI. Other Benefits:

• Commissary and Exchange: We touched on it – if not 20/20/20, the ex-spouse loses access. Some

folks ask if they can still get on base to take the kids shopping, etc., after divorce. Generally no, unless escorted as a guest by someone or if the base has a visitors policy. An ex-spouse without privileges can’t just use the ID anymore. It can be a lifestyle change – no more cheap groceries, or using base gym, etc. That can be an emotional and financial loss for some. But it’s the law.

• Housing: If the family was in base housing, the ex-spouse and children will have to vacate base

housing typically within 30 days of the divorce (if the servicemember is not living there with them). This is often a big issue around the time of separation: the civilian spouse might move out early, or if the servicemember moves to barracks, sometimes the family can get a short grace period in housing. Plan for this – the divorce decree should note who’s responsible for arranging new housing and maybe use cash from property division or support for that transition.

• Tuition and Education: If the servicemember had transferred GI Bill to the spouse, and then they

divorce, by law the servicemember can (if they choose) revoke the transfer or change the beneficiary to someone else. A divorce decree cannot force the servicemember to keep the GI Bill for the exspouse’s use (and the ex only has it if they already got it transferred and they use it within 10 years of member’s separation, etc.). For kids, the member could still use GI Bill for them. This is not usually in a decree but can be part of negotiation. Health Care for the Former Spouse in Practice: Many former spouses will eventually need to find their own health insurance – through a job or ACA marketplace – once their military-connected eligibility ends. One advantage of the 20/20/20 rule: the ex-spouse can remain on TRICARE Prime or Select, which is excellent coverage at low cost. This can factor into spousal support considerations: a 20/20/20 spouse might not need as much maintenance for health insurance because they have TRICARE, whereas a 10-year spouse might argue for more maintenance to cover purchasing private health insurance. Illinois courts do consider the cost of health insurance in maintenance needs. So be aware of these differences when advocating. In conclusion, Illinois attorneys should ensure the Marital Settlement Agreement or judgment addresses these benefits:

• Statement of whether former spouse qualifies for any continued DoD benefits (for informational

purposes).

• Who covers the children’s health insurance (almost always the servicemember via TRICARE while in

service).

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• A provision for the servicemember to cooperate in getting the spouse any eligible military ID card or

processing of forms.

• Perhaps a clause that both parties acknowledge the former spouse’s military benefits will terminate

except as provided by federal law (to avoid later misunderstandings).

• If one spouse is providing health insurance (military or otherwise), detail how uninsured expenses

are split (Illinois usually 50/50 unless disproportionate incomes).

• And if the former spouse is close to 20/20/20 but not quite, maybe incorporate how they will handle

the gap (some might agree to delay divorce a bit; if not, just proceed but at least everyone knows the outcome).

Working with JAG and Civilian Counsel: Coordinating Legal Resources Military members and their spouses often have access to free legal assistance from Judge Advocate General (JAG) offices or legal assistance attorneys on base. However, it’s important to understand the scope and limits of JAG services in family law, and how to coordinate them with your civilian attorney’s work: Role of JAG Legal Assistance: Every service branch has legal assistance lawyers who can provide basic advice and help with documents to servicemembers (and sometimes their dependents) on personal legal matters, including divorce. They can explain SCRA rights, discuss the divorce process, review a proposed settlement, draft a simple will or power of attorney, etc. For a servicemember facing divorce, a base legal office can be a good first stop to get a general understanding. They may also have pamphlets or guidebooks on military divorce issues. However, JAG attorneys cannot represent clients in civilian divorce court. They don’t go to state court or file divorce pleadings on your behalf. If a case becomes contested or complex, the servicemember will need to hire a civilian Illinois-licensed attorney for full representation. In fact, if the spouse is also a military dependent, the JAG office might have a conflict of interest and may only advise the servicemember, not the spouse, or vice versa (they usually can’t advise both sides). Often the rule is they can advise the ID card holder who comes to them first, and the other may have to seek separate advice. Coordination between Civilian Lawyer and JAG: If you are the civilian lawyer representing a servicemember or spouse, it can be helpful to know if your client has consulted a JAG lawyer and what advice was given, to ensure consistency. Sometimes JAG will provide sample provisions or a letter outlining the member’s rights (for example, a letter to the court requesting a stay under SCRA). Open communication is useful: with the client’s permission, I’ve occasionally spoken with a JAG attorney to clarify a military regulation or confirm that a certain clause meets DFAS requirements. JAGs often have expertise in military-specific issues but might not know Illinois-specific nuances, whereas I know the Illinois law but might double-check the federal rule with them. This teamwork can benefit the client. DFAS and Military Pension Division Expertise: DFAS (Defense Finance and Accounting Service) has a Uniformed Services Former Spouses’ Protection Act (USFSPA) Division that reviews court orders. Many JAG offices keep a manual or checklist for drafting pension division orders. Some civilian attorneys in Illinois specialize in military divorce (advertising as such), and have forms for DFAS orders. It’s wise to either use those resources or even hire a consultant (like a military divorce lawyer or retired JAG) to review your

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proposed order. Mistakes in DFAS orders cause delays. For example, forgetting to cite the jurisdiction basis, or not stating “as of date of divorce” in a frozen benefit case, might lead DFAS to reject it. Illinois Courts vs. Military Regulations: Occasionally, a civilian attorney might propose something that runs afoul of military regs. For instance, an order might try to force a servicemember to maintain SGLI life insurance for the ex – as noted earlier, that’s not enforceable. A JAG advisor would flag that. Or, an agreement might say “member will not re-enlist as that would affect support” – the military member cannot just promise not to re-enlist; that’s not something a court can enforce. Coordinating ensures that any promises or requirements in the divorce decree are actually allowable under military law. Great Lakes Naval Station / Illinois Local Practices: Because Illinois (especially the Chicago area) has a significant military population (Naval Station Great Lakes, Army Reserve and National Guard units, Scott AFB downstate, etc.), some local practices have developed: - In Lake County (where Great Lakes is), attorneys are familiar with military pay issues. The court might have seen many cases with sailors. - Cook County’s special calendar is one example of adaptation 2 . - Some judges might require language about military service in default prove-ups: e.g., “Is your spouse in the military?” on the record, to ensure SCRA compliance. Always be ready to answer that in court. - The Illinois Supreme Court standardized forms (if a litigant is pro se) include an Affidavit of Military Service form (with reference to Supreme Court Rule 10-101 on standardized forms) 79 80 . Self-represented litigants should use those. Enlisted vs. Officer Considerations: Enlisted servicemembers (E-1 through E-9) and Officers (O-1 through O-10) have different pay scales and often different perks (like eligibility for certain housing, etc.). From a legal perspective, the main difference is usually income level (officers earn more, thus higher support typically) and retirement (an officer’s pension is larger due to higher pay, which might lead to more fighting over division). Also, officers are often required to uphold certain conduct – for example, adultery is a crime under the UCMJ. While that rarely comes into play in divorce court directly, an officer might be more keen to settle amicably to avoid any messy allegations that could hurt their career. Enlisted folks may have less flexibility in schedule (less likely to get leave whenever they want for court). As an attorney, adjust your approach: for enlisted, ensure support is affordable given their lower income; for officers, make sure they disclose any extra benefits (like housing allowances which might be higher if they’re not in barracks, or specialty pays). Communication with Command: Sometimes, especially if a servicemember is uncooperative or hiding information, a lawyer might consider contacting the client’s commanding officer for assistance (e.g., to get an address or to inform them of the SCRA stay request). This should be done carefully and usually only as a last resort or through proper channels (like writing to the base legal office or using a military point of contact). The military generally expects its members to resolve personal legal matters, but they will enforce support orders if needed. Under 32 C.F.R., command involvement is allowed to encourage compliance with court orders (no one wants a soldier hauled off base in handcuffs for contempt if it can be handled internally first). Mediation and Settlement: If both parties are open to it, mediation can be effective in a military divorce as in any other. A mediator familiar with military issues is a plus. Many of the unique issues (like SBP, pension percent, relocation plans) can be settled by agreement if explained well. Encourage clients to see the big picture: for example, a servicemember might negotiate giving the spouse more of the TSP in exchange for the spouse waiving interest in SBP. A civilian spouse might agree to delay relocation until the school year ends to accommodate the military parent’s leave schedule to come move the child.

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Knowing Resources: A good civilian attorney should know some external resources: - The Illinois bar association and the ABA have guides on military divorce. - The Military OneSource website provides general info (even JAG references it) 8 . - The state’s Attorney General or child support services have experience garnishing military pay. - Federal statutes like SCRA, USFSPA, and military regulations (DoD FMR, service-specific regs) might come into play, so don’t hesitate to research them or ask a JAG. Final Tip: Both attorneys and clients should maintain realistic expectations and a cooperative tone when possible. Military life is demanding; courts respect servicemembers’ contributions but will prioritize children’s and ex-spouses’ rights too. A divorce that protects everyone’s interests (the servicemember’s career, the spouse’s financial security, the children’s stability) is achievable with knowledge and good advocacy. Both a JAG advisor and a civilian lawyer can be parts of that solution. The client should use the JAG for what they’re good at (free legal education, reviewing for compliance with military rules) and rely on their Illinois attorney for court strategy and formal representation.

Conclusion: Military divorce in Illinois requires navigating both state and federal law. It involves everything a regular divorce does – property division, support, custody – plus layers of military-specific rules like SCRA stays, pension division formulas, SBP elections, and benefit eligibility. The stakes are high (a pension that can be worth millions over a lifetime, health benefits that are literally lifesaving). By understanding the 50state law (Illinois statutes and case law) and the 50 U.S.C and 10 U.S.C federal provisions together, one can achieve a fair outcome. Always double-check that your orders meet DFAS requirements, file the military affidavit for default cases, and don’t be afraid to seek expert help on complex points (e.g. consult a retired JAG or a specialist for a second opinion on a pension order). This guide is meant to be a roadmap – the definitive resource to bookmark – but it’s no substitute for personalized legal advice. Both servicemember and spouse should assemble a team (civilian lawyer, and use JAG advice) to cover all bases. With thorough preparation and cooperation, a military divorce need not be a war – it can be a structured resolution that honors both the service to our country and the rights of the family.

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A refresher course on continuances—Stumbling blocks and issues ...

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Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, ISC2 CC, Google Cybersecurity Professional Certificate). Illinois Super Lawyers Rising Star 2016-2025.

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