Any attorney who has decided to represent either an active duty service member, a retired service member or the spouse of either an active duty or retired service member where one or both parties is living overseas will face certain pitfalls not normally experienced in a domestic civilian divorce.
The purpose of this article is to provide an attorney with the practical problems faced in an overseas military divorce concerning Service of Process and Jurisdictional issues over the military pension, child custody and child support.
A. Service of Process:
As my law school civil procedure professor used to say, " If you don’t have proper service you don’t have a case." Service of process can be particularly vexing when dealing with an overseas military case. I cannot
stress strongly enough
the need for proper service. It does neither you or your client any good to have your final judgment set aside due to lack of proper service. An attorney representing a defendant servicemember is not off the hook. That attorney must insure that proper service has been made on the client.
If your defendant is overseas you have some options as to service.
a. Voluntary Acceptance of Service. If the defendant wants the divorce as much as the plaintiff then he/she may be willing to accept service voluntarily. When drafting the acceptance of service it is good practice to mention the applicable treaty in the acceptance of service.
a. Formal Service. If your defendant is overseas and will not accept voluntary service he/she must be served under the appropriate treaty. If you try to cut corners by using a state statue that allows for service by publication you will not have made proper service. The only time an overseas defendant may be served by publication is when the defendant’s address is unknown. Many attorney think that because a defendant has a military postal address he/she may be served via certified or registered post. That is not considered proper service unless the country in which they are located allows service in that manner. The particularities of not only the treaties and the signatories change on a fairly frequent basis. Therefore, your best resource for overseas service is the United States State Department website which lists all the service treaties and country requirements. Currently one may serve a defendant in Iraq or Afghanistan via the U.S. postal service.
One may want to think twice about serving a defendant in a war zone. I won’t do it unless the servicemember also wants the divorce, because I know of at least one case where the servicemember died as a direct result of receiving the service.
B. Jurisdiction. Jurisdiction in an overseas military case generally has four aspects: Jurisdiction over the military pension, jurisdiction over personal and real property and jurisdiction over child custody and support. Jurisdiction over personal and real property will fall under United States state jurisdictional statutes. The pitfalls lie in jurisdiction over the military pension, child custody and child support.
1. Jurisdiction Over the Military Pension. Jurisdiction over the military pension is controlled by federal statute; specifically Title 10 U.S.C. 1408, which states the requirements for jurisdiction over the military pension. Jurisdiction over the military pension can be compared to subject matter jurisdiction with the exception that the active duty or retired servicemember may waive the jurisdiction. Only a court of the United States and it’s territories may divide the military pension; no foreign court may divide the military pension.
a. Jurisdiction Over the Active Duty Member’s Pension. In order to have jurisdiction over the military pension the follow requirements must be met:
(1) The military member cannot be resident of the state only due to military assignment, or
(2) The military member must consent to the jurisdiction of the court.
In order to understand what "The military member cannot be resident of the state only due to military assignment," means one must understand a peculiar aspect of military life. We all know that normally we are residents of the state in which we live. Eventhough, we were born and raised in State A and we still think of State A as home, we live in State B and that is were we are residents. But for an active duty military member that does not hold true A military member is allowed to maintain State A as his/her residence eventhough he/she is stationed (living)in State B. All states have statutory provisions which state that a servicemember who has left the state due to military orders is considered to be still resident of the state.
A servicemember’s residence may be the same his/her Home of Record, which is generally where the servicemember entered the service, or it may be that the servicemember has changed his/her residence to another state. The normal indica of residency may not tell you. It is common for a servicemember to have a driver’s license in State A and real property in State B but be a resident of State C. So how does the practitioner know which state is the servicemember’s state of residence? The best clue is to see which state is on the servicemember’s Leave and Earnings Statement (LES) or pay statement. That is the servicemember’s tax home.
Consent or waiver to the court’s jurisdiction is fairly obvious. If the servicemember is the petitioner he/she has consented to the court’s jurisdiction. The pitfall lies with the attorney who represents a servicemember defendant. In order to preserve the jurisdiction the servicemember must invoke it otherwise the servicemember has waived jurisdiction. Therefore, when representing a defendant servicemember make sure you know his/her state of residence.
b. Jurisdiction over the Retired Member’s Military Pension. Obtaining jurisdiction over a retired servicemember’s pension is not nearly as difficult as jurisdiction over the active duty servicemember’s pension. If the retired servicemember is living in the United States his/her state of residence is where he/she is physically located. However, many retired servicemembers work for the United States government overseas or live in an overseas area. If the retired servicemember is working for the US government overseas he/she retains residency in either the last state in which he/she lived prior to going overseas or in the state of residence he/she had while on active duty. The question is how does one know? If the retired servicemember lived in a state for at least six months after retirement then that state is probably the state of residence. If the retired servicemember either retired overseas or took an overseas position shortly after retirement look to the state in which he/she was resident on active duty. Let me give you a couple of examples:
While Mary was on active duty her state of residence was in Kentucky. Her last duty station was in Georgia. Upon her retirement, Rather than moving back to Kentucky while looking for job she decided to remain in Georgia. However, she did not register to vote or apply for a driver’s licence in Georgia and accepted a U.S. government position shortly thereafter. In this case one would look to, Kentucky, her state of residency while she was on active duty.
While Jon was on active duty his state of residence was New York. His last duty station was in Virginia. Upon his retirement he applied for a driver’s license and registered to vote in Virginia. However, about six months after he retired he was offered a position with the US government in an overseas location which he accepted. His state of residency would be Virginia.
C. Jurisdiction over Child Custody. Jurisdiction over a child for the purposes of custody in the United States is based on state law which is, usually, based on the UCCJEA. The problem arises when the child is overseas. However, the concept is the same as under the UCCJEA. Jurisdiction over a child is in the state or foreign country in which the child is habitually resident in other words, the place in which the child has been physically located for the six months, prior to the filing. Child custody jurisdiction is subject matter jurisdiction, which cannot be waived or conferred. Addressing all aspects of child custody belongs in it’s own article. I will address some common pitfalls found in military cases.
1. One may not bootstrap the parent’s state of residency for child custody. Just because the military parent has residence in State A does not give State A jurisdiction over child custody.
2. Citizenship has nothing to do with child custody jurisdiction. If the child is habitually resident in Foreign Country A then that court has jurisdiction over child custody. It doesn’t matter that the child is a US citizen.
3. This bares repeating, one may not waive or submit to the jurisdiction of a court for the purposes of child custody. Jurisdiction over one party has nothing to do with jurisdiction over the child. If the child has been in Foreign Country A for six months prior to the filing or the child was born in foreign country A and is still there. Your state does not have jurisdiction.
What can you do? Your client can either apply to the foreign court for a custody order. Some foreign courts are more user friendly than others or if the parties are civil, they can agree to custody and visitation. If the parties can agree to custody I use a parenting agreement option for two reasons: First, although it is not an order, it is enforceable under contract law and second some foreign court will not issue child custody order if the parties are in agreement as to custody and visitation.
D. Jurisdiction Over Child Support. The jurisdiction over child support is personal jurisdiction over the parent paying the support; not the child. Again, easy enough if you’ve got everyone in the same place or can use a state long arm statute, or even if the non-custodial parent (NCP) subsequently relocates to State B.
But what do you do when you represent the custodial parent (CP) in a state with which NCP has no connection and NCP goes to an overseas assignment. This is where the military member’s state of residence can work to your benefit. The servicemember’s state of residence always has personal jurisdiction over the servicemember. Therefore, eventhough NCP is overseas CP can file for child support in NCP’s state of residence. Please keep in mind that you will still have to properly serve the NCP.
E. MISCELLANEOUS PITFALLS
1. Most servicemembers have Service Member’s Group Life Insurance (SGLI). SGLI is a low cost term life insurance policy that has no cash value. If you want to insure child support using life insurance do not use SGLI. There is no provision under the federal statute that governs SGLI that allows for enforcement if the servicemember decides to change the beneficiary.
2. Do become familiar with the new Servicemember’s Civil Relief Act (2003) (SCRA). There is a Judges’ Guide in the Military Section of the ABA Family Law website.
3. As the SCRA is new, use the cases for the old Soldiers’ and Sailors’ Civil Relief Act.
4. Remember that the military pension is divided under state law. There is no federal statue mandating how the pension is to be divided.
5. The 10-Year Rule applies only to whether the non-military spouse is eligible to receive his/her share of the pension from the military finance department. It is not a threshold for eligibility for the pension division.
6. When drafting a visitation schedule take into consideration overseas and out of state visitation and draft appropriately.
7. If the service member is close to retirement and your state allows it, draft a re-calculation of child support to be accomplished at the time of retirement.
