§ 12.01 The Conjunctive and Disjunctive Theories

• Jurisdiction: United States
• Publication year: 2021

§ 12.01 The Conjunctive and Disjunctive Theories

Property normally is characterized as separate or marital property based upon the time at which and manner in which the property is acquired.¹ In addition to this basic analysis, before benefits received from the federal government can be declared divisible at divorce, it must be determined whether the applicable federal statute bars the division of the benefit in a divorce proceeding.²

This preemption issue is relevant only if the federal benefit would otherwise be characterized as divisible property. In some instances, federal benefits have been deemed the employee's pain and suffering,³ or post-divorce wages,⁴ or because the benefit was a gift to the employee.⁵ If the benefit would otherwise be considered divisible property, however, the divisibility of the benefit hinges upon the resolution of the preemption issue.

The United States Supreme Court has not clearly articulated how courts are to determine whether division of a certain benefit has been preempted by federal law.⁶ One case suggests that there must be a conflict between the federal and state law, and the application of the state divorce law must do major damage to clear and substantial federal interests.⁷ Another case sets forth the standard in this manner:

"While [s]tate family . . . law must do major damage to clear and substantial federal interests before the Supremacy Clause will demand that state law be overridden, . . . [t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law. . . . [A] state divorce decree, like other law governing the economic aspects of domestic relations, must give way to clearly conflicting federal enactments."⁸

One commentator argues that this second case is authority for the view that conflict alone between state and federal law is sufficient basis for preemption.⁹ Under this standard, if a conflict exists, it would not be required to establish that the application of state law would damage a federal interest. This writer suggests that the preemption standard should be disjunctive, i.e., preemption should be warranted if there is a conflict between federal and state law or if the application of the state law violates an important federal interest.¹⁰

Regardless of whether the preemption standard is disjunctive or conjunctive, there has been substantial dispute regarding when a conflict between state and federal law will be found, and when the...