No Service, No Divorce Case

Service of process can be particularly vexing when dealing with the military case. Having a final judgment set aside due to lack of proper service will not do you or your client much good. Starting the case again will be time-consuming and expensive.
Any divorce attorney who represents an active-duty servicemember, a military retiree, or nonmilitary spouse will face pitfalls regarding service of process and jurisdiction not present in a civilian divorce case. The basic concept is, as my law school civil procedure professor used to say, “If you don’t have proper service, you don’t have a case.”

Defendant in the United States

If your client’s spouse is an active-duty servicemember, military retiree, or nonmilitary spouse living in the United States, service is made under the applicable state statute. To serve the active-duty military member, you often must try to catch him or her between deployments.

If the servicemember lives on a military installation, have the sheriff or process server coordinate service efforts with the installation provost marshal’s office (military for “police station”); don’t bother contacting the servicemember’s commander. Military officials may not serve legal process.

You can breathe a sigh of relief if your defendant lives off post (military for “having a house or apartment off-base”). If that is the case, effect service as you would with anyone else. Don’t make this harder than it is.

Formal service overseas

If your defendant is overseas, service may be governed by a treaty, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Do not attempt to cut corners by using a state statute 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 his or her address is unknown. Don’t make the mistake of thinking that, just because a defendant has a military postal address, he or she may be served via certified or registered post. That is not proper service unless the country in which the servicemember is located allows service in that manner.

The particularities of treaties and the signatories change on a fairly frequent basis. Therefore, your best resource for overseas service is the U. S. Department of State Web site at www.state.gov, which lists all service treaties and country requirements. For a legal memorandum on how to serve process under the Hague Service Convention, go to www.ncbar.com/lamp, click on “Resources,” and then go to “Administration of Justice-International Service of Process under the Hague Convention." Currently, one may serve anyone in Iraq or Afghanistan via the U.S. Postal Service; the Hague Service Convention does not apply.

Think twice about serving a servicemember in a war zone, however. I won’t do it unless the servicemember also wants the divorce because I know of at least one case in which the member’s death was directly related to service of a divorce petition.

If the defendant wants the divorce as much as the plaintiff, he or she may be willing to accept service voluntarily. When drafting the acceptance of service, it is good practice to mention the statute or rule governing service, as well as any applicable treaty.

Jurisdiction

In divorce cases involving military personnel, jurisdiction generally has four aspects: jurisdiction over the military pension, over personal and real property, over child custody, and over support. Jurisdiction over personal and real property is governed by specific state jurisdictional cases and statutes. The pitfalls for the practitioner lie in jurisdiction over the other three issues.

Jurisdiction over military retired pay is controlled by federal statute; 10 U.S.C. § 1408(c)(4) states the requirements for jurisdiction over the military pension. This can be compared to subject matter jurisdiction, except that the active-duty or retired servicemember may waive the statutory requirements. Only a court of the United States and its territories may divide the military pension; no foreign court may do so.

To have jurisdiction over the military pension, the following requirements must be met:
(1) The court must be in the member’s domicile state; or
(2) The military member must reside in the territorial jurisdiction of the court (but not due to military assignment, or
(3) The military member must consent to the jurisdiction of the court.

To understand the first requirement, one must be aware of a peculiar aspect of military life. Normally we are residents of the state in which we live. If we are born and raised in State A and think of State A as “home” but live in State B, we are legal residents of State B. For an active-duty military member, however, this does not hold true. A military member is allowed to keep State A as “residence” even when stationed (living) in State B. Numerous state statutes and cases specify that a servicemember who has left the state due to military orders is still considered a legal resident of the state, unless he or she acts affirmatively to change domicile. The Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq., specifically provides that a servicemember may keep his or her original legal residence for tax and voting purposes.

“Home of record”

A member’s residence may or may not be the same as his or her “home of record,” which generally is where the servicemember entered service or the state to which he or she has changed residence. The home of record is a military administrative entry that is not intended to denote domicile. Servicemembers are seldom consistent as to indicia of domicile. It’s not uncommon for a servicemember to have a driver’s license in State A, bank accounts in State B, and real property in State C, but to be a resident of State D.

So how does one determine a servicemember’s state of residence? Although all states make domicile determinations dependent on all the member’s facts and circumstances, the best clue is on the servicemember’s Leave and Earnings Statement (LES) or pay statement. The state listed there is the servicemember’s home for income-tax-withholding purposes.

Consent or waiver to the court’s jurisdiction is fairly obvious. If the member is the petitioner in a property division lawsuit, he or she has consented to the court’s jurisdiction. The danger lies with the attorney who represents a servicemember–defendant. To avoid consenting to thecourt’s jurisdiction over the pension, the servicemember must affirmatively object; otherwise this defense will have been waived. Therefore, when representing a defendant–servicemember, make sure you know his or her state of legal residence and you object to the court’s jurisdiction over military pension division if your strategy is to avoid it in that state.

Think twice about serving divorce papers in a war zone

One final point on jurisdiction involves default judgments involving an active-duty military member. Under the Servicemembers Civil Relief Act of 2003 (which replaced the old Soldiers’ and Sailors’ Civil Relief Act), members can reopen default judgments up to 90 days after they retire unless certain procedures are carefully followed during the divorce. Rule of thumb: Avoid defaulting on an active-duty member if at all possible; however, if there is no other choice, follow provisions of the law exactly, and be sure to sue in the member’s state of legal residence.

Obtaining jurisdiction over a retired servicemember’s pension is as problematic as dealing with the active-duty servicemember’s pension. If the retiree resides in the United States, the state of residence is determined by physical location. However, many military retirees work for the U.S. government overseas or live abroad on their retirement checks. If the retired servicemember is working for the U.S. government overseas, his or her residency is either the last state lived in prior to going overseas or else his or her state of residence during active duty.

But how does one know? If the retiree lived in a state for at least six months after retirement, that state is the likely state of residence. If the member retired overseas or took an overseas position shortly after retirement, look to the state of residence during the last tour of active duty. The following examples may be instructive.

(A) While Mary was on active duty, her state of legal residence was Kentucky. Her last duty station was in Georgia. Upon retirement, rather than moving back to Kentucky while looking for a job, she decided to remain in Georgia. However, she did not register to vote or apply for a driver’s license in Georgia and accepted a U.S. government position overseas shortly afterward. In this case, one would look to Kentucky, her state of residence while on active duty, as her domicile while she is working post-retirement overseas.
(B) While John was on active duty, his state of legal residence was New York. His last duty station was in Virginia. Upon retirement, he applied for a driver’s license and registered to vote in Virginia. However, about six months after he retired, he accepted a position with the U.S. government overseas. His state of legal residency under this set of facts would be Virginia.

Child custody

Jurisdiction over a child for the purposes of custody in the United States is determined under state law, which generally is based on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Problems may arise when the child is overseas. However, the basic concept is the same as under the UCCJEA. The state or foreign country in which the child is habitually resident has jurisdiction over the child. This “habitual resident” is usually the physical location of the child for six months prior to the filing. Child custody jurisdiction is subject matter jurisdiction, and this cannot be waived.
Although a comprehensive look at child custody jurisdiction is beyond the scope of this article, the following are some common pitfalls to avoid.

1. One may not bootstrap onto the parent’s state of legal residency. A military parent’s domicile in Ohio does not give Ohio jurisdiction over child custody.
2. Citizenship has nothing to do with child custody jurisdiction. If the child habitually resides in Italy, that country’s courts have jurisdiction over child custody. The child’s U.S. citizenship is not a factor.

If the parties are amicable, they can enter into a parenting agreement

3. This bears repeating: One may not waive or submit to the jurisdiction of a court for the purpose of child custody. Jurisdiction over one party has nothing to do with jurisdiction over the child. It may be unfortunate for your state court case that the child has been in Japan for six months prior to the filing or that the child was born in Germany and remains there. Your state does not have custody jurisdiction.

What can you do? Your client can apply to the foreign court for a custody order; some foreign courts are more “user-friendly” than others. Or, if the parties are amicable, they can enter into a parenting agreement. I tend to prefer the parenting agreement for two reasons: (1) although it is not an order, it is enforceable under contract law, and (2) sometimes foreign courts are not as creative as U.S. courts allow parents to be, and that can frustrate the plans of the parties for flexible custody arrangements.

Child support

Jurisdiction over child support is based on personal jurisdiction over the parent paying the support not over the child. It is easy enough if everyone is in the same place or can use a state long-arm statute or if the noncustodial parent (NCP) relocates to State B. But what happens when you represent the custodial parent (CP) in a state to which the noncustodial parent (NCP) has no connection and he or she is assigned overseas? This is where the military member’s state of legal residence can work to your benefit. The servicemember’s state of domicile always has personal jurisdiction over the member. Therefore, even though the NCP is overseas, the CP can still file for child support in the NCP’s state of residence. FA

Do’s & Dont’s

1. Don’t use the Servicemembers’ Group Life Insurance (SGLI) to insure child support. Federal law effectively bars state court enforcement of life insurance provisions if the servicemember later changes the intended beneficiary.

2. Do become familiar with the new Servicemembers Civil Relief Act (SCRA) found at 50 U.S.C. App. § 501 et seq.

3. Because the SCRA is new, use cases decided under the old Soldiers’ and Sailors’ Civil Relief Act when no precedent is otherwise available.

4. Remember that the military pension is divided under state law. No federal statute mandates how the pension is to be divided.

5. The “10-Year Rule” applies only to the issue of whether the nonmilitary spouse is eligible to receive a share of the pension from DFAS as a garnishment. It is not a threshold for pension
division eligibility.

6. When drafting a visitation schedule, do take into consideration overseas and out-of-state
visitation and draft appropriately.

7. If the servicemember is near retirement and your state allows, draft a recalculation of child support to be accomplished at the time of retirement.

Marion J. Browning-Baker began her second stint in the U.S. Army with the Judge Advocate Corps in 1992. She left active duty in 1996. Because most of her clients are located in Europe and the Middle East, she has developed an expertise in service of process under the Hague Service Convention, military-related divorces, international child-custody jurisdiction, and other jurisdictional matters. She divides her time between Stuttgart, Germany, and Portsmouth, Virginia.

Published in Family Advocate, Volume 28, No. 2, Fall 2005. © 2005 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Advertisement