Jurisdiction of a Military Divorce

Posted: 18 October, 2021

When a married couple wants to divorce and one or both spouses is a military service member, the first step in the divorce process is to establish which state and which courts have the jurisdiction, which is the authority to grant the divorce and handle other issues related to a divorce. That is because all divorce and custody laws are valid at the state level, not the federal level. For example, a judge in Pennsylvania cannot grant a divorce or establish custody for a couple living in Florida.

It is important to determine which state has the jurisdiction or authority to grant a divorce when one spouse lives in Texas and the other lived in Florida with the kids. Different states have different rules to determine whether a spouse is a state resident. More than half of all states require at least six months (180 days) of verified residency in order to file for divorce, while many other jurisdictions require 60 or 90 days. Each state’s rules are different from other states. For example, Nevada only requires the filing spouse to be a Nevada resident for the previous six weeks before the filing. If the couple have children, they can usually can only file the divorce in a state where a spouse and children have lived for at least the previous six months.

Essentially, there are usually three places where a service member can initiate a divorce:

  • Where the service member resides
  • Where the service member’s spouse resides, or;
  • Where the service member is currently stationed

Because many military families move frequently, this framework can sometimes provide greater flexibility than the typical divorce case. In order for a divorce case to be initiated, the spouse not initiating the divorce action must be served with the legal documents.

What is a “Domicile”?

Many military members confuse “domicile” with “home of record,” but the two terms mean different things. Your domicile is where you have roots currently and it is considered your permanent residence. This can lead to complications fir a divorce in which one or both spouses serve in the military. Since your domicile is your permanent home, if you find yourself stationed in Nevada but you own a home in Connecticut, then your domicile might be Connecticut. On the other hand, your “home of record,” which may show up on many military records, tends to be the state where you lived when you first joined the military.

If you are in the service and deployed outside of the United States, a state may allow you to file a divorce in your home of record, although it is recommended that you file in the state where your spouse is currently living, assuming they are not also deployed or stationed outside of the United States.

For example, military personnel who are currently in Nevada may file for divorce in this state if they are either stationed here or if is listed as their domicile. If you are a resident of another state and serve in Nevada, you may file for divorce under the residency requirements of your home state. If you are considered a Nevada resident but you are stationed elsewhere, you may have the choice of filing in Nevada or in the state where you’re stationed, so long as you meet the residency requirements of the state you choose.

Generally speaking, military personnel and their spouses have three choices when it comes to where they can file for divorce:

  • The state where the spouse filing resides;
  • The state where the military member is stationed; or
  • The state where the military member claims legal residency.

Overseas Service of Process

There are a number of other complications for certain types of military personnel and certain types of posts. For example, service on a ship or shore installation violates military regulation, while service within certain foreign jurisdictions may violate the Hague Convention. However, there are additional rules related to service of process on members with children who are posted overseas. Federal agencies have designated officials who help serve these individuals.

Because of all the restrictions, when a military spouse is stationed or deployed overseas, it can be very difficult to serve process on them. There are several ways for a spouse to receive service. They are:

  • Voluntary Acceptance of Service – If the defendant service member is in agreement abut and wants the divorce, they may simply agree to accept service. They can do this by drawing up an acceptance of service form that indicate this.
  • Formal Service – On the other hand, if the spouse refuses to accept service, formal service may be necessary, if it is allowed under the treaty appropriate to their service. The options for overseas service are more limited than in other circumstances. Service by publication generally is not acceptable, for example, and service by certified mail at the defendant’s military postal address is only valid when the country permits such service. Typically, the preferred method of service is personal.
  • Court Appointment – While military authority may not be compelled to serve the summons and complaint against the defendant service member, the spouse or their legal counsel may request that military authority serve the defendant. If the parties do not agree on service, however, the court may appoint an active duty, reserve or civilian person as an officer of the court to serve papers on the defendant.

The United States Department of State website contains a complete list of all relevant service treaties and details the requirements necessary to serve a service member in various countries.

Jurisdiction Over Divorce and the Military Pensions

Like civilian retirement benefits, military pensions are subject to division between spouses as a part of the divorce process. The Uniformed Services Former Spouses’ Protection Act (USFSPA) says that state courts may treat military retirement pay as either sole or community property, based on the laws in effect in that state. The USFSPA doesn’t provide a specific formula for dividing the amount of retirement pay, so the amount is generally determined and awarded under the specific state laws. Payment of the former spouse’s share of military retirement is paid directly by the Defense Finance and Accounting Service (DFAS) to the former spouse if there was at least 10 years of marriage that overlapped with 10 years of military service, which is known as the 10/10 rule. However, regardless of the length of the marriage, a court may still authorize direct payment to a military spouse who has been married for less than 10 years as an offset, except that payment would come from the retiring spouse rather than from the DFAS.

When dividing assets in a divorce, it may be helpful to know that a foreign court cannot divide the military pension; only a court in the United States or its territories has the jurisdiction to divide a military pension. In order for a court to have jurisdiction over the servicemember’s pension, the servicemember cannot be a resident of the state only through their military assignment. Alternately, the military member must give consent to the court’s jurisdiction. In other words, if the servicemember moved because of military assignment and has no intention of living in the state following their military service, the court in that state will not have jurisdiction over the pension unless the service member explicitly consents to such jurisdiction. In most cases, the servicemember’s legal state of residence is usually that indicated on their Leave and Earnings Statement.

If the service member is retired, their residence is either the last state where they lived before going overseas or in the state where they lived while on active duty. If the service member resided in a state for at least six months after retirement, that state is usually considered the state of residence.

In addition to half of all pension benefits, spouses of former military personnel are also eligible for full medical, commissary, and exchange privileges after a military divorce when the following conditions exist:

  • The couple was married for 20 years or more;
  • The service member has performed at least 20 years of creditable service toward retirement pay; and
  • There was at least a 20-year overlap of both marriage and military service.

Jurisdiction Over Child Custody

The law that typically applies to child custody when parents live in different states or countries is the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). According to the UCCJEA, jurisdiction over a child is in the state where the child legally resides and where they have been physically located for the previous six months.

If a state has jurisdiction over a service member because of the service member’s residency in the state, this type of jurisdiction cannot be waived. However, that state does not necessarily have jurisdiction over child custody, since the child’s citizenship is not considered a determining factor when making a determination regarding jurisdiction over child custody.

Jurisdiction Over Spousal and Child Support

The military has special rules regarding the concepts of spousal maintenance (otherwise known as alimony) and child support. The purpose for these rules is to ensure that a service member honors their family support obligations in the wake of a divorce or separation.

A court has several methods for enforcement of spousal and child support obligations, including the use of court orders, garnishments or allotments, either voluntary or involuntary. In many cases, the court may require the providing spouse to maintain a life insurance policy sufficient to cover alimony or child support payments for a specified period of time.

Once You Establish Jurisdiction

As noted in another chapter, service members who are currently on active duty receive certain protections when it comes to all types of court proceedings. For example, under the Service Members Civil Relief Act (SCRA), military personnel can apply for a “stay,” or a temporary stoppage of any civil action that has been initiated against them while they are on active duty or within 90 days of their release from active duty, at the court’s discretion. The purpose for this stay is to allow service members to concentrate their time and energy on the defense of the nation and not have to worry needlessly about any orders or judgments against them while they’re unable to appear in court.