Be Careful What You Ask For: Pension Jurisdiction and Military Divorce

By Kristopher J. Hilscher

The following is a hypothetical illustrating problems and interplay between pension jurisdiction and divorce for military servicepersons.

The Initial Problem

Lisa approached Tom. The time had come. It was the “D” word they’d been avoiding. No, not a new dog . . . Lisa wanted a divorce. Tom knew the divorce would be complex as Tom served in the Army Reserves for nearly 15 years. Why now? What about the children? What about the house they bought last year? Despite Tom’s many thoughts and issues with the divorce, he knew it was time to call a lawyer and determine the best path between two places: marriage and divorce.

Tom’s lawyer Bill, as with most lawyers, advised him to file an action against Lisa requesting the relief Tom wanted such as seeing his children on a regular basis and obtaining a reasonable division of assets. Bill and Tom did not know that they may have inadvertently decided an important issue regarding Tom’s retired pay by filing.

Start at Jurisdiction

“Jurisdiction is a word of many, too many, meanings.”[1] Simply stated, jurisdiction is the court’s authority to act. A court must ordinarily have both subject matter jurisdiction and personal jurisdiction to handle any case. Congress has enacted a law to allow the states to determine the division of a service member’s retired pay.[2] Compliance with this federal law is required to determine whether a state court handling Tom and Lisa’s divorce has the power to divide Tom’s retired pay. Federal law imposes an additional federal jurisdiction test, which must be complied with for a pension division to occur. A state may only exercise jurisdiction over a service member’s pension rights if:

1. The state is the service member’s domicile;
2. The service member consents to the exercise of jurisdiction against him; or
3. The service member resides in the state for reasons other than military assignment.

Because this test is distinct from what is required for Tom to address his claim for custody, or the parties divorce and property division, Tom may have made a serious error regarding his pension when he asked the court for other relief. The old idiom “be careful what you ask for” comes to mind. Why? Tom may have allowed the court to divide his pension by his filing and requests.

What Does the Law Say?

Many states have held that the requirement imposed by federal law is a personal jurisdiction requirement, including North Carolina.[3] There are notable cases involving jurisdictional issues. In Ohio, the appellate court found that there was no personal jurisdiction since the former spouse had never lived in Ohio and the marriage had never existed there. The ex-husband was a not a resident of Ohio. Even though the former spouse tried to obtain pension division in California (where the divorce was granted), the court there found that the ex-husband was not domiciled there and had not consented to the court’s exercise of jurisdiction over the pension.[4]

The lesson for the former spouse is to make sure that the claim for pension division is asserted where there is subject matter jurisdiction, personal jurisdiction, and jurisdiction under the federal test over the service member. For the service member, he should think very carefully before making any requests in a court that does not meet the test set out above (consent, presence other than military assignment, or domicile).

Note that the “home of record” for a service member is not the same as the domicile. The “home of record” is a term used by the government for the service member and, unlike domicile, remains constant throughout a career unless a member has a break in service.[5]

The service member’s physical presence and intent are determinative of his or her domicile. The physical presence requirement is the easier of the two, the inquiry limited initially to where the service member lives. The intent to remain can be seen from many different aspects. Some common examples of evidence of intent include payment of taxes in a state (income or property tax or both), bank accounts, voting, registration of property such as vehicles, ownership of real estate, and licensure in a state. Consider having your client complete a domicile questionnaire in such cases to determine the necessary facts to assess and prepare your clients for this issue.

Tom’s Defenses

Tom can defend for lack of federal jurisdiction only if Tom does not take any action which may indicate his consent (as he did above by filing). He would file a motion to dismiss or a motion for summary judgment or partial summary judgment regarding Lisa’s claim to his military pension. A person can only have one domicile, so Lisa can only divide Tom’s pension in one state at any given time (unless Tom consents to another state). Objecting can have the effect of preventing a pension division for Tom in any jurisdiction other than his domicile.

Representing Tom’s interests in this course of action is challenging and complex. The first step on this path is to determine whether Tom is indeed domiciled in a U.S. jurisdiction that limits or bars division of his military pension.[6] The second step is to obtain competent co-counsel to assist with this matter, someone with substantial experience in the area. This might be a reserve component member, military expert, or a former judge advocate officer.

As a second scenario, the reason for Tom to choose this approach might be to call his wife’s bluff. This is particularly true if Tom’s domicile state has similar property division laws to that of North Carolina. Even though the state of his domicile would divide the pension in much the same way as the state where his wife filed the lawsuit, Tom might want to make sure that his wife has to expend the maximum amount of money to get part of his pension. In order to drive up the cost of the divorce, he may want to ensure a fight in two states, the state of suit and the state of his domicile, to try to get her to back down. He might be convinced that she will not spend the time or money to obtain counsel in his state of domicile to ask for a division of the pension there.