Divorce in the military has many complexities, but jurisdiction is one of the most complicated. Because the military itself has no ability to decide family law issues, military divorce must be settled in state courts.
Unlike civilians, however, military divorces have unique characteristics that can make it difficult to determine which court has jurisdiction, which is a potential complication to child custody, the division of assets and the division of retirement benefits. Because of this, it’s possible for multiple courts to assert authority over different aspects of the divorce proceedings.
Fortunately, an overarching federal statute, the Uniformed Services Former Spouse Protection Act, establishes federal jurisdiction and protects a service member from a spouse’s continuing eligibility for commissary, exchange and health care benefits, as well as the servicemember’s military retired pay.
Learn more about federal jurisdiction in military divorce and how the Uniformed Services Former Spouse Protection Act impacts divorce proceedings.
What Are Federal Jurisdiction and the Uniformed Services Former Spouse Protection Act?
With military divorces settled in state courts, one of the main concerns is that a member or spouse may seek out a state that is more likely to rule in their favor. In these cases, any state court judgement is enforceable to divide retirement benefits.
The Uniformed Services Former Spouse Protection Act, or USFSPA, includes special jurisdictional rules that must be satisfied in military cases to get an enforceable order for division of benefits as property. According to this legislation, an order dividing retired pay as property of the member and former spouse will only be honored if the issuing court exercised personal jurisdiction over a member in one of three conditions:
- Residence in the territorial jurisdiction of the court, not by military assignment.
- Domicile in the territorial jurisdiction of the court.
- Consent to the jurisdiction of the court.
With these special jurisdictional rules, the limitations must be satisfied along with any state law jurisdictional requirements. Otherwise, the case may go forward, but it won’t result in enforceable orders regarding retirement benefits. This creates another jurisdictional requirement, or “federal jurisdiction.”
How Does Federal Jurisdiction Affect Retirement Benefits?
Because of the additional requirements of federal jurisdiction, a spouse seeking retirement benefits should never take a default divorce against an out-of-state military member. The results will not be enforceable, and if the valid jurisdiction of both the federal and state laws can’t be achieved, the action will be dismissed and refiled in the state where the military member lives.
Obtaining Federal Jurisdiction
Of the three conditions, consent is the easiest to establish in divorce cases, since the general appearance of the member and spouse before the court, or simply requesting a divorce action, constitutes consent.
In some cases, however, a service member may deny consent to court jurisdiction for the sole purpose of avoiding the division of retirement benefits. In these cases, however, there’s generally not a jurisdictional issue regarding retirement benefits in the divorce action. If this occurs, the spouse may still have an opportunity to gain retirement benefits, though it can be a long, tedious and expensive process.
For example, the service member may serve in one state and refuse consent to that court’s jurisdiction, claiming that the presence there is solely a result of military assignment and the actual residence is in another state. The spouse can then file a parallel action in the residing state, serve that action and claim the intention of allowing the two jurisdictions to determine the appropriate action.
In many states, the division of assets is in accordance with the property accrued during the marriage, whether described as community property or equitable division. Because of this, a service member is more likely to avoid the added expense and permit the litigation of all claims in the court jurisdiction where they reside.
Establishing Residence and Domicile in Jurisdictional Issues
If this situation proceeds to litigation, the state will need to determine where the service member actually resides, which can complicate things further. State courts have different definitions for “residence” and “domicile.” This can bring “tax home” and the state in which the service member files state income tax into evidence to determine the state with which the member has the most connection.
The service member’s “home of record” with the military is also taken into consideration. According to the Legal Assistance Policy Division of the U.S. Army’s Judge Advocate General’s Corps, the “home of record” is the state of residence of a service member when the member entered the armed forces. This may or may not be the same state as the service member’s domicile, which is where the service member will eventually return “home” to. The home of record is used solely to determine the moving expenses for the service member and family upon termination of military service, which isn’t often changed after the fact.
Another means of determining jurisdiction is the service member’s DD-2058 form that’s on file with the military, which is the “State of Legal Residence Certificate,” or legal residency form. This may lead to more questions about when and why the form was filed, however, and may not have any more relevance than the state definitions of residency and domicile. Federal law prohibits service members from accidentally losing or acquiring a residence or domicile as a sole result of military assignment, so the intent in filing the form is imperative.
If “dream sheets,” or preferred postings, are available, they can be taken into consideration. If a service member lists a jurisdiction as the primary or only preferred duty station, this establishes a good case for the location being more than a military assignment. Prior postings and how often the service member returned to the forum after being stationed elsewhere is considered.
Voter registration can be used to establish domicile or residence in a particular jurisdiction as well. The time of registration and the most recent voting record are considered, however, since a voter registration decades in the past has little bearing on the events since that time.
Like voter registration, driver’s licenses and car registrations can also be useful in determining the intent to remain in a particular state for a significant length of time. Along the same lines, any declaration of residences in deeds, mortgages, leases, contracts, insurance policies, hospital records or lawsuits can also be used.
Other factors in establishing connections to a jurisdiction aren’t as clear-cut, but can still prove useful. How long a service member lived in the jurisdiction, where their children attend school, where their bank is located and any involvement in the local community, such as volunteer work, can be used as residential intent. Real estate purchases can also be used, though doing so doesn’t necessarily mean the service member intends to live in the jurisdiction.
Once federal jurisdiction is obtained, whether by consent, domicile or residence other than military assignment, the court has the authority to treat the retirement benefits as property, as it would with any other asset.
Consult an Attorney
With the complexities of military divorce, it’s important to speak with a qualified and experienced military divorce attorney. Fortunately, the QDRO Masters at the Willick Law Group have the expertise and experience to handle your military divorce and division of retirement benefits. Contact us today to schedule your consultation!
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