According to the Defense Manpower Data Center, more than 1.2 million active enlisted personnel serve in the five branches of the U.S. military.1 Many service members are married--for example, 58 percent of active U.S. Air Force personnel.2 Even during peacetime, military marriages involve significant stresses--from long absences to financial worries--that can lead to divorce, and this country has been at war for more than 10 years. As a result, it should not be surprising that since the start of military operations in Afghanistan in 2001, the divorce rate among military members has risen.3 There are over 400 military bases in this country, and California is the leading state in number of bases.4 Family law attorneys are obliged to consider the interplay of California and federal laws that specifically concern members of the U.S. military in divorce.5
Divorces involving military personnel have unique statutory considerations. Those on active duty enjoy legal protections that civilians do not. One example is that military authorities may be asked to serve process on an active-duty service member deployed overseas, but that member can refuse to accept the service. Courts may be asked to make service, but few will send someone a long distance to serve a member of the military. Therefore, the start of a divorce may have to wait until the service member returns.
Another example is the Servicemembers Civil Relief Act (SCRA),6 which was signed into law by President George W. Bush in 2003 to update and strengthen the Soldiers and Sailors Civil Relief Act of 1940. The SCRA allows for temporary suspension of judicial and administrative proceedings and transactions against active-duty members of the military. The protection begins on the date of entering active duty and generally terminates 30 to 90 days after the date of discharge from active duty. The definition of "active duty" is complex.7
Issues of jurisdiction are also complicated. The application of subject matter and personal jurisdiction makes it possible to have one divorce case take place in two different states.8 This may also happen with military divorces and can be further complicated by special jurisdiction rules involving the transitory stationing of a service member. This often affects service members who have not formed an intention to remain in a state and do not meet the requirements for residency.
In civilian and military divorces, California can acquire subject matter jurisdiction if one party has been a resident of the state for at least six months preceding the filing of the petition for dissolution of marriage.9 Residency requires proof of physical residence and an intention to remain in the state. A service member may not meet these requirements while a spouse does. Therefore, it is often relatively simple for California to acquire subject matter jurisdiction. The complicated issue is whether California has personal jurisdiction over a respondent service member.
Often, service members are stationed here by demand of the military rather than by a purposeful action of the service member. Regardless of whether a person is on active duty in the military, however, state law applies to the issue of personal jurisdiction, and in California, courts may exercise jurisdiction "on any basis not inconsistent with the Constitution of this state or of the United States."10 In Marriage of Hattis,11 the court held that the relevant inquiry was whether the service member had sufficient minimum contacts with the state to make the exercise of jurisdiction reasonable.12 The "minimum contacts" test that the court utilized was the one set forth in International Shoe Company v. State of Washington.13 Due process requires establishment that a party to an action has "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"14
While a California court may find it has personal jurisdiction over a service member, often the member's domicile is the state from which he or she entered the military. In the absence of contrary proof, this state is presumed to continue to be the member's domicile.15 Furthermore, the body of law on minimum contacts is general, while laws relating to family law are more specific and thus are better guides,16 and special jurisdictional rules apply to child support, spousal support, and property division.
One way to simplify the issue of jurisdiction is with consent. A service member may consent to personal jurisdiction with Judicial Council form FL-130 or FL-130(A) and a Declaration and Conditional Waiver of Rights under the SCRA.17 Respondent service members who do so will not be charged a filing fee.18 While it is unlikely a service member will use the issue of personal jurisdiction as a means of contesting dissolution, a court will have to rule that no personal jurisdiction exists over a service member who is present in the state by order of the military and does not otherwise qualify for personal jurisdiction.19 If a case involves more than the mere termination of marital status, however, the likelihood of an objection based on personal jurisdiction increases. In cases involving children, property, support, and pensions, the specific jurisdiction rules applicable to family law and to military divorces must be considered.
For example, the powers of the state court to divide a military pension are subject to the Uniformed Services Former Spouse's Protection Act (USFSPA).20 Pensions are specifically governed by the USFSPA. The act requires that the state in which the service member is sued for the division of the pension plan be the state in which he or she has 1) established residence (other than because of military assignment), 2) established domicile, or 3) provided consent.21 Even if a service member consents to the personal jurisdiction of California over some issues in the dissolution (e.g., custody, support, and property), the act prevents the state court from dividing the service member's military pension.22 If a service member asserts what is known as a Tucker defense, it is possible that to end one marriage, two divorce actions will take place in different states.
Other means for exercising personal jurisdiction (such as the "minimum contacts" rule or in-state service of process) are no substitutes for the UISFSPA requirement that a service member be a resident or domiciliary of this state or that he or she consent to the state court's division of his or her military pension.23 Under the USFSPA, issues of jurisdictional contact (residence, domicile, or consent) must be settled at the time the military pension division is litigated, and past contacts do not suffice.24
Military divorce complicates the rules of jurisdiction in other ways. For example, California's Uniform Interstate Family Support Act (UIFSA)25 applies to the establishment and modification of child support orders against a service member. The act relies on the rules of residency to determine personal jurisdiction, which means there can be only one domicile.26 If a service member stationed in California on military assignment can show that he or she remains domiciled in a different state (e.g., the state that issued the support order), California does not have jurisdiction to establish or modify support. Custody and support issues, in turn, are addressed in provisions of the Uniform Child Custody Jurisdiction and Enforcement Act27 and the Parental Kidnapping Prevention Act of 1980.28
The SCRA also applies to child custody proceedings. Upon application, an active-duty service member who is a party to any civil action is entitled to a stay of the proceedings for at least 90 days.29 The application must include a letter setting forth facts that show how "current military duty requirements materially affect the service member's ability to appear and stating a date when the service member will be available to appear." This letter shall be from the commanding officer and shall include a statement that the service member's current military duty prevents appearance and that military leave is not authorized at the time.
If a service member wants a stay beyond 90 days, a court may grant it. The test is whether the service member's military service adversely affects participation in the court proceeding.30 If the court denies a stay beyond 90 days, it must appoint counsel to represent the service member's interests.31 The court may not proceed with the matter unless the service member is represented or has waived his or her SCRA rights.32
The SCRA also provides legal protection for the active service member if there is a default of appearance.33 If the service member's default occurred while he or she was in military service or within 60 days of termination of military service, the court shall, upon a motion filed by the service member, set aside the judgment. This motion however must be filed no later than 90 days from the day that military service is terminated. The service member must demonstrate that 1) the military service "materially affected" the service member's ability to defend the action, and 2) that he or she has a meritorious defense to the action.34
State Law Preemption
While the SCRA offers protection to service members who are doing what they can to respond to civil suits, once personal jurisdiction over the service member has been obtained, state law generally applies. (Exceptions include military pensions.) A state law governing domestic relations will not be overridden by a federal law unless the state law does "major damage to clear and substantial federal interests," and express preemption arises only when Congress has explicitly stated its intent in statutory language.35
One example of preemption involves child, spousal, and family support. Service members receive basic allowances, in the form of pay, for housing (BAH) and subsistence (BAS).36 Congress has not expressly prohibited state courts from considering these military allowances as nontaxable income for purposes of determining support. The Federal Preemption Act, however, provides that a military member's BAH and BAS allowances cannot be garnished or taxed.37
In other areas, California law is not preempted. Under the Family Code, for example, custody and visitation orders shall not be modified if a service member is unable to comply with them because of military service or deployment out of state.38 However, if a service member's "temporary duty, deployment, or mobilization orders from the military" requires him or her to relocate a "substantial distance" from his or her residence or otherwise has a "material effect" on the service member's ability to exercise custody or visitation rights, a temporary modification shall be considered. If temporary orders are made, the court is mandated to consider any appropriate order to ensure that the relocating parent can maintain frequent and continuing contact by means that are reasonably available.39 One possible means of ensuring contact is by allowing interim family member visitation. In civilian divorce and custody matters, third parties are very rarely granted visitation rights.
The Family Code also provides that upon a service member's return from military duty, deployment, mobilization, or temporary duty, a hearing shall be held to review its temporary orders. There shall be a presumption for reinstatement of the custody order that was in place before the temporary modification occurred, unless the court determines that to not be in the best interest of the child.40 In addition, relocating service members may, in contrast to civilians, receive special accommodations for an expedited hearing on custody and vitiation issues prior to their departure or upon relocating. Service members will be allowed to present testimony and evidence via telephone, video teleconferencing, Skype or the Internet, to the extent this technology is reasonably available to the court and protects both parties' due process rights.41
In cases involving service members, upon a relocating parent's motion, a court may grant reasonable visitation rights to a stepparent, grandparent, or other family member if the court 1) finds there is a preexisting relationship between the family member and child that has "engendered a bond" so that visitation is in the best interest of the child, 2) finds that visitation will facilitate the child's contact with the relocating parent, and 3) balances the child's best interest in having visitation with the family member against the other parent's right to exercise parental authority.42 This request must be brought by the service member; the nonparent does not have standing to seek such orders.43 Nonparent visitation has no effect on the calculation of child support.44
Another difference between military and civilian divorces may be found in the modification of child, spousal, and family support due to reduced income from military service activation and out-of-state deployment. Rather than utilizing the standard procedures of motion or orders to show cause, a service member may seek a support modification by filing and serving a notice of activation and request to modify support.45 Upon request by the service member, in child (but not spousal) support cases, the local child support agency may appear in court on behalf of the service member. Once the service member fills out the Notice of Deployment,46 the agency must bring the motion to modify support if the change in circumstances would result in any change in the support order.47
An order modifying or terminating support based upon a change of income resulting from activation to the military or National Guard and deployment out of state must be made retroactive to the latest of 1) the date of service of the notice of activation, 2) the date of activation or notice of the motion, or 3) the date of a request for order to modify or terminate support unless good cause is shown for not making the order retroactive.48 Good cause may be shown if a service member unreasonably delayed in seeking the modification.49
The biggest difference between military divorces and civilian divorces concerns military pensions, which are governed by the USFSPA.50 This area of law, however, is plagued with litigation, dissension, and confusion. It is affected by retroactivity and constant amendments to existing laws. Even the statutory definitions continually change.
Moreover, special jurisdictional rules apply to military pensions. Service members may forum-shop among the states in which he or she is resident, domiciled, or consents to jurisdiction, and interstate disputes may arise. The state that has jurisdiction over the military pension determines how the pension is divided, and different states apply different rules, although the differences among the states are decreasing. It is important to understand how the pension may be treated in different states. In 1983, the USFSPA granted state courts the right to divide military retirement pay in accordance with state law. The act limits the former spouse to receipt of no more than 50 percent of the disposable retired pay51 from the government. If more than 50 percent is to be awarded to the spouse of the service member as part of the property division, the amount above 50 percent must be collected directly from the service member. The USFSPA allows collection of up to 65 percent of the disposable retired pay to meet arrearages of child support, spousal support, and attorney's fees. Under the federal act, these percentages cannot be exceeded even with the service member's consent.52
State law comes into play with how and when a pension should be divided. California typically applies what are known as a time rule formula and Gilmore rights53 to set payments prior to retirement but after eligibility. These calculations involve mortality tables, but the military uses tables that are different from California's. The military also uses particular definitions of whether a service member has accrued a retirement interest while on active duty (retired pay) or while serving in the reserves (retainer pay).
Military pensions are not like ERISA plans, from which the spouse's share can be calculated and separated. This makes the timing of the spouse's ability to access benefits critical. Service members may be eligible to retire after 20 years of service but may choose not to do so for another 20. Therefore, in order to exercise Gilmore rights, the divorce decree must specifically state that the benefits are to be divided at the time the service member is eligible to receive the benefit. Otherwise, the former spouse must wait until the service member retires in order to obtain his or her share of the benefits.
The USFSPA makes no guarantee that a spouse will get a portion of the retirement paid directly by the government out of the pension account as part of a property division. This direct division of military retirement pay is not mandated unless two other USFSPA requirements are met. One is that the parties were married at least 10 years, and the other is that during the marriage, at least 10 years of service credit was earned toward retirement benefits.54 This is often referred to as the 10-year rule. It does not mean a spouse is denied a share of the retirement benefits if 10-year rule requirements are not met. Rather, it means an order cannot be enforced against the government to make payments out of the pension account. The state court will still determine the community interest in the plan but if the 10-year rule is not met, the court will be limited to making an order enforceable only against the service member.55
Many spouses may not be comfortable pursuing former spouses for a portion of the pension. An alternative is to negotiate a trade, such as a nonmodifiable, nonterminable spousal support order measured by the military retirement benefit. Spousal (and child) support orders are enforceable against the pension account. This gets around the 10-year rule and will assure the service member that the spousal support order will not increase.
If the 10-year rule requirements are met, thereby allowing for payments directly from the pension account, it is important for the spouse that the interest in the plan be defined as a percentage rather than a dollar figure. Only with a percentage interest is the spouse entitled to cost-of-living adjustments.
There are legitimate ways a service member can intentionally or unintentionally cause the reduction of the value of a pension account, such as exercise of the right to take a lump sum distribution prior to retirement. A service member may also waive what is known as retired pay in order to receive service-connected disability pay. The nonmilitary spouse should have explicit language in the divorce settlement that reserves jurisdiction with respect to the military pension and indicates the intent to protect the nonmilitary spouse's right to continued pension payments even if the service member waives retired pay.56
If the service member seeks disability pay before the conclusion of the divorce, the spouse should request the trial court to make specific findings distinguishing the amounts of "true" disability pay (i.e., the service member's separate property, not divisible by the state court) from longevity retirement pay (which is subject to community property interests and therefore divisible by the state court).57
In the case of the service member's postjudgment receipt of disability pay and concurrent waiver of retired pay, the state court can enforce agreements by the service member indemnifying the spouse for his or her community property share of military retirement benefits lost by this election. However, this should be negotiated as part of the divorce judgment, including a reservation of jurisdiction to supervise and enforce the indemnification obligations.
Other future contingencies to consider in a military divorce agreement include 1) the possibility of either a reserve retirement or a normal active-duty retirement if a service member is activated to the reserves, 2) notification by the service member to the former spouse when termination of active duty is planned or occurs, 3) the possible rollover credit of military service into a civilian service retirement or other pension, 4) whether spousal support is possible if the service member takes a disability retirement or otherwise reduces or eliminates regular retired pay, 5) whether a reservation of jurisdiction is needed to correct the form of order to comply with the court's intentions, 6) whether there should be a waiver of military retired pay in exchange for the receipt of a federal civil service retirement annuity if the service member is already retired or retirement is imminent, and 7) whether to obtain a Privacy Act waiver from the service member, permitting the former spouse or attorney to obtain information concerning retirement, retired pay, and other related matters.
Any court orders that are to be effected against the military for a division of retirement benefits must be served on the secretary of the designated service branch (or designated agent) via personal service or certified or registered mail, return receipt requested.58 Very specific language must be included in all orders made under the USFSPA.59
There are other benefits to be considered in a military divorce. Under the USFSPA, a former service member's spouse is eligible for full medical, commissary, and exchange privileges when 1) the marriage lasted at least 20 years, 2) the military member performed at least 20 years of service creditable for retired pay, and 3) there was at least a 20-year overlap of the marriage and the military services.
If the spouse remarries, eligibility for benefits is terminated. The benefits are revived if the subsequent marriage ends in divorce or death. In other words, the former spouse must not be married at the time benefits are sought. Very clear rules must be met to receive these benefits, which are considered entitlement and therefore should not be bargained for in the divorce.
When representing the spouse of a service member, it is very important to make sure he or she is deemed the surviving spouse of an annuity or other retirement and death benefits under the survivor benefit plan. The state court has the authority in a divorce to order the service member to participate in the annuity plan, to pay the premiums, and to designate his or her former spouse as beneficiary.60 After dissolution, the annuity benefits payable to the surviving spouse will only be payable if the service member makes a new election in favor of his or her former spouse. Where the dissolution judgment requires such election, the now-former spouse should file a written request with the military that the election be deemed made. This request is irrevocable and must be made within one year after the judgment is entered.61 Also, the former spouse must remain unmarried when the service member dies.
Military life insurance policies written through the National Service Life Insurance62 and Servicemembers' Group Life Insurance63 illustrate federal preemption. Federal law provides that a military insurance policy is the service member's separate property regardless of the source of premium payments.64 Further, the service member has the sole right to designate the beneficiary of the policy proceeds, and a state court cannot order otherwise. Therefore, it is important never to negotiate and bargain for attributing value to a policy and never to use this military policy to secure support or any other obligation, because a change in beneficiary will always supersede the state court orders.
With 1.2 million enlisted military personnel in the U.S. armed forces, divorce among some of them is inevitable, and family law attorneys representing spouses in military divorces need to be informed of the many important differences between civilian and military divorces.