Filing a suit for divorce doesn’t automatically give a State court jurisdiction to divide military retired pay. Federal law (specifically, Uniform Services Former Spouse Protection Act found in Title 10 of the United States Code at Section 1408) requires that a State court establish jurisdiction over military retired pay in one of three ways, as follows:
- The Servicemember must reside in the territorial jurisdiction of the court by reason other than military assignment;
- The Servicemember must be a domiciled in the territorial jurisdiction of the court; or,
- The Servicemember must consent to the jurisdiction of the court.
Let’s take a closer look at each way in reverse order.
First, a Servicemember consents to jurisdiction if they’re the spouse who filed for divorce. In other words, by asking the court to grant relief, the court’s jurisdiction is invoked over the person filing (the “Petitioner”). On the other hand, if the Servicemember is the spouse being sued for divorce (the “Respondent”), they consent to jurisdiction if they file an answer with the court or participate in a hearing—without, first, objecting to jurisdiction over military retired pay via “Special Appearance,” described later.
Second, jurisdiction always exists over a Servicemember domiciled in the territorial jurisdiction of the court. “Domicile” is different from “residence,” in terms of legal effect. A person may have more than one place of residence (e.g. a “permanent” home in Texas and a vacation or rental home in Colorado). A person only ever has one place of domicile, which is the place of residence that the person considers their “permanent” home. By Federal law, a Servicemember doesn’t give up their domicile simply because the military sends them on assignment in some other State. So, a Servicemember who considers Texas to be their domicile may be sued for divorce in a Texas court while stationed in any State (including Texas) or foreign country. Indicators of a person’s domicile include but are not limited to the following: (a) the State in which their car is registered; (b) the State in which they’re registered to vote; and, (c) the State claimed on their LES for tax purposes.
Last, if the only reason the Servicemember resides in the territorial jurisdiction of the court is because of their military assignment, then jurisdiction over military retired pay may be withheld—but only if the Servicemember takes the specific step of filing a “Special Appearance” prior to filing an answer or otherwise participating in the suit. Filing a Special Appearance is a delicate legal procedure. If done properly, the suit for divorce can still proceed, but a division of military retired pay cannot be part of it. For example, a Servicemember whose domicile is Florida, but who resides in Texas only by reason of military assignment, may withhold jurisdiction over military retired pay if their spouse files for divorce in Texas and the Servicemember timely files a Special Appearance.
Filing a Special Appearance is not something to be done off the cuff. See a qualified military divorce attorney for questions on establishing or withholding jurisdiction over the Servicemember’s military retired pay.
Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm. The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.