§ 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

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