A soldier has just called your office for an appointment next Monday. He wants a divorce. How should you prepare for your military divorce case?
By Mark Sullivan, Family Lawyer
Most of the time such matters as service on the defendant/respondent, grounds, and time for the answer or response are routine issues of divorce practice. They have no unique military overtones. There are, however, certain military benefits that are lost upon divorce and, in addition, both parties must comply with state law regarding two matters that often are problems in the military divorce case: domicile and residence.
What Is a Domicile in a Military Divorce Case?
The first essential element of divorce is domicile of at least one or both the parties. You cannot obtain a valid divorce if neither party is domiciled in your state. The U.S. Supreme Court has stated that jurisdiction over the power to grant a divorce is premised on domicile. The domicile of one of the spouses within the state gives that state power to dissolve a marriage, regardless of where it took place.
A domicile is the place where a person has a settled connection for legal purposes – where they presently live or intend to return to after an absence. It is their fixed, permanent home and principal establishment. One cannot acquire a new domicile without abandoning an old one. Their stay in the domicile must be indefinite, not for temporary or special purposes, or until it is to their advantage to take up residence elsewhere.
Domicile for Service Members
Due to their involuntary mobility, federal law provides service members (SMs) with unique protections; otherwise, they might be considered domiciliaries of each state in which they are assigned. Specifically, the servicemembers’ Civil Relief Act allows SMs to retain their domiciles for tax purposes and voting. A service member can prove their domicile in many ways, such as moving their family to a state, registering to vote in it, or obtaining a driver’s license.
Don’t Be Fooled
Some people confuse the military phrase “home of record” (HOR) with domicile, which are two different things. The HOR is a military administrative term that refers to the place to which the government will transport them and their household goods upon separation from the service. It’s based on where the SM entered military service and isn’t intended to carry legal implications.
Don’t be deceived by faux residence statutes. Some states have statutes granting an SM the right to apply for a divorce when they have been stationed in the state for six months. Such a law would appear to allow an SM who has been stationed in the state for half a year – but is domiciled elsewhere – to file in that state for divorce, even though their spouse is likewise not domiciled there. Such states include North Carolina, Georgia, Texas and Virginia.
Be careful when such a statute is present. Residence alone, even when pursuant to military orders, is not domicile. Mere assignment to a military base in a state does not come close to being considered domicile. When there is no bona fide domicile, the divorce will be in serious jeopardy. One party must be domiciled in the forum state that grants the dissolution or divorce.
When taking on a divorce case, pay particular attention to the state claimed by your client (or the opposing party) for state tax withholding. Quite a few SMs claim Florida or Texas as their legal residences upon entry into the military due to state income taxes. Seven states do not have any personal income tax, and a number of others have rules that limit personal income taxes to passive income or to those other than service members. Thus, many SMs consider themselves Florida residents or “Tax Texans” so they can avoid state income taxation. Often they have done nothing of substance to change their domicile, but simply filed an “affidavit of domicile” in Florida and opened a post office box there.
The Concept of Residence in a Military Divorce Case
Distinct from domicile is the concept of residence. Residence usually means the physical location of an individual, detached from however long they intend to remain there. The terms “domicile” and “residence” are sometimes confused and may be used synonymously by courts or statutes.
The state residence requirement for divorce can pose a problem for your client, who will not be a physical resident of their domicile state unless they are stationed there. While a nonmilitary spouse of an SM may be a domiciliary of the state of military assignment, the SM rarely is. Many states have explicit residency statutes requiring the petitioner or plaintiff to reside in the forum state for at least six months preceding the filing of the lawsuit, in addition to implicit domicile requirements.
Be sure to check your state statute closely to determine whether it requires the SM to be physically present in your jurisdiction for the period of residency. Some states require a physical presence, while others give “constructive credit” to SMs who are absent involuntarily due to military orders.
Divorce Procedures and the Service Member
Can you obtain the dissolution without a hearing? Does the SM have to testify? It is sometimes difficult for SMs to obtain leave, and travel can be unreliable and expensive. Sometimes you can get your client a valid divorce where they are stationed, but it will be necessary to check the jurisdiction laws to see if your client qualifies for divorce because of domicile (that of both parties should be checked).
Next, see if the SM or spouse is eligible for divorce back home in their state of legal residence. Sometimes the process is faster, simpler, or less fault-oriented than in the jurisdiction where your client is presently stationed.
Finally, be careful to find out if there are ways of avoiding unnecessary travel and expense for your client. See if you can use depositions or summary judgment to cut down on expenses for personal appearances in divorce hearings.
Counsel for the SM should address obtaining a priority or peremptory setting for the divorce. In fact, the SM’s attorney should consider this for any hearing in which the SM’s live testimony is required. This is usually a matter of reading the state’s rules of civil procedure, general practice, or the local rules to see what elements are necessary for a peremptory setting. Be sure to keep knowledgeable about any rules, priority-setting and otherwise, that may be put in place by the court.
Share the Load
Why should you carry the whole case when you can get help in handling a military divorce? If you don’t do this type of case often, you should consider associating a co-counsel or a consultant. You can find a Guard or Reserve judge advocate for your partner, or perhaps an attorney who is a retired JAG officer. Wherever you go, remember the duty to obtain a competent co-counsel is an ethical requirement.
Properly dividing military pensions requires an understanding of tax issues specific to military pension garnishment as well as an ability to differentiate alimony from income.
For those bold enough to take on the challenge, here are some tips to help you get started on handling military retirement benefits.
Mark E. Sullivan, a retired Army Reserve colonel, practices family law in Raleigh, NC and is the author of The Military Divorce Handbook (ABA., 2nd Ed. 2011), from which portions of this article are adapted. He is a Fellow of the AAML and a board-certified specialist in family law. He works with attorneys nationwide as a consultant on military divorce issues.