Yes, when DFAS tells a former spouse that a clarification order is necessary to receive former spouse retired pay, the ex-spouse/Servicemember “must” be served with notice of the clarification proceeding. The former spouse cannot simply claim the Court has jurisdiction over the Servicemember because of a prior proceeding (e.g. the divorce).
More importantly, the clarification proceeding requires that jurisdiction over the Servicemember be established (one might say, “re-established”) through one of the three methods specified in the Uniform Services Former Spouse Protection Act (USFSPA), which are as follows:
A. Residence in the territorial jurisdiction of the Court by reason other than military assignment.
B. Domicile in the territorial jurisdiction of the Court.
C. Consent to the jurisdiction of the Court.
When “A” and “B,” above, do not apply “consent” is obtained when the Servicemember joins the proceeding by filing a Waiver of Service, filing an Answer, or filing any other responsive pleading.
Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC. The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world. The firm specializes in Federal Civil Service and Military Divorce matters.
For attorneys, see 10 U.S.C. Section 1408(c)(4)(specifying the three ways jurisdiction may be established under the USFSPA); Kovacich v. Kovacich, 705 S.W.2d 281, 282-83 (Tex. App.—San Antonio 1986, writ dism’d w.o.j.) (stating that personal jurisdiction cannot be conferred by a prior proceeding, but must exist at time of the instant proceeding).