An Introduction to Family Law and the Military - October 2008
| Publication year | 2008 |
| Pages | 69 |
| Citation | Vol. 37 No. 10 Pg. 69 |
2008, October, Pg. 69. An Introduction to Family Law and the Military - October 2008
October 2008
Vol. 37, No. 10 [Page 69]
About the Author
This article addresses the issues unique to family law cases involving military personnel, including jurisdiction, the Servicemembers Civil Relief Act and other statutes protecting servicemembers, the rights of deployed parents, the division of military retirement, VA disability payments, and obtaining family support from a servicemember.
The term "military divorce" is not a legal one; it is a colloquial term referring to a family law proceeding where at least one of the parties is a servicemember(fn1) or retiree. Military cases may present unique challenges-for example, a party may deploy with little notice. There are state and federal laws intended to protect the rights of servicemembers, in addition to military regulations outlining the support of family members and jurisdictional issues. There also are laws addressing a retirement plan that historically was not divisible by the states and, even now, has unique criteria for division. Military families face parenting challenges with greater frequency than civilians, due to their highly mobile lifestyle.
With six military installations in Colorado,(fn2) in addition to numerous reserve component units, it is important for the family law practitioner to understand issues related to servicemembers and the military. This article discusses issues practitioners face when representing servicemembers and their spouses in family law cases, and provides links to resources with more comprehensive information.
Subject Matter Jurisdiction
Typically, jurisdiction is not an issue when both parties live, marry, and have a child or children in Colorado. However, in cases involving two servicemembers, establishing subject matter jurisdiction in Colorado can be challenging.
Colorado Domiciliary
For Colorado to have subject matter jurisdiction to grant a dissolution of marriage, at least one party must have been a Colorado domiciliary for ninety days prior to filing.(fn3) Servicemembers usually designate their states of residence by submitting to their branch of service a DD Form 2058, State of Legal Residence Certificate.(fn4) The military then reports that residence to the applicable state and federal taxing authorities, and reflects that state of residence in the "State Taxes" block of the military Leave & Earnings Statement (the servicemember's pay stub).
Being stationed in Colorado pursuant to military orders, without more, is not sufficient to establish residence.(fn5) Factors relevant to determining whether Colorado is a servicemember's legal residence include registering to vote in Colorado, registering a vehicle in Colorado, obtaining a Colorado driver's license, working in a civilian job in Colorado, and the intent to remain in Colorado.(fn6) None of these factors alone may be sufficient to overcome the servicemember's claimed legal residence pursuant to the DD Form 2058, but several of them together may be sufficient.
Practitioners should take caution in relying on vehicle registration to establish residence, due to the Colorado exemption for nonresident servicemembers from paying vehicle ownership tax.(fn7) To save hundreds of dollars per year, servicemembers routinely will submit a DR Form 2667, Affidavit of Nonresidence and Military Service Exemption from Specific Ownership Tax(fn8) to the Department of Motor Vehicles on registration, wherein they swear, under penalty of perjury, that they are not legal residents of Colorado.
If a dual military couple initiates dissolution proceedings in one of their respective states of legal residence, they likely will face problems with parenting issues. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),(fn9) a child's home state is defined as the state the child has resided with a parent or acting parent for at least six consecutive months prior to filing or, for a child under 6 months of age, the state where the child lived from birth.(fn10) Thus, even though Colorado may have no jurisdiction to grant a dissolution, it may be the child's home state under the UCCJEA, and therefore have exclusive jurisdiction to make an initial child custody determination.(fn11) This could result in dual legal proceedings, with a dissolution action in one state where a spouse was a resident, but an allocation of parental responsibilities proceeding in Colorado, pursuant to CRS § 14-10-123. Often, the military couple's best option is for one of them to submit a new DD Form 2058 to the military, designating Colorado as the state of legal residence, then wait the requisite ninety days before initiating the case.
Jurisdictional questions arise less frequently when only one spouse is in the military and the other is a civilian. Generally, courts will find that a civilian living in Colorado whose spouse is a servicemember is a legal resident of Colorado.
Personal Jurisdiction
C.R.C.P. 4 outlines the requirements for personal service. These requirements apply equally to civilians and servicemembers, and neither state nor federal law contain any additional legal requirements for service of process on military members.
However, the absence of any formal legal restrictions on serving process does not imply it will be easy to serve military personnel. A servicemember may live on a military installation that restricts civilian access, meaning service of process may need to be coordinated with the local or military law enforcement. Service of process on a U.S. servicemember stationed overseas, like a civilian served overseas, may be governed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.(fn12) Finally, for all practical purposes, it is impossible to serve a summons on a deployed servicemember, absent a signed waiver of service, or finding someone in the same unit willing to effect service.
Servicemembers Civil Relief Act
In 2003, the U.S. Congress updated the Soldiers' and Sailors' Civil Relief Act of 1940; the new version is the Servicemembers Civil Relief Act of 2003 (SCRA). The SCRA contains numerous legal protections for servicemembers, two of which apply to family law proceedings: (1) protection from default judgments; and (2) stays of civil proceedings.(fn13)
Protection of Servicemembers Against Default Judgments
In any civil legal proceeding, a party seeking a default judgment is required to file an affidavit stating whether the other party is in the military or whether military status cannot be determined.(fn14) The court cannot enter a default judgment against the servicemember unless an attorney is appointed to represent him or her.(fn15)
A court shall set aside a default judgment against a servicemember when that judgment was entered during the military service, or within sixty days of the termination of such service, provided that:
1) the request is filed during the military service or within ninety days after the service ends;(fn16)
2) the military service materially affected the servicemember's ability to appear; and
3) the servicemember has a meritorious or legal defense to some or all of the matter.
The most likely scenario for relief would occur when a servicemember was deployed to a combat zone at the time the judgment entered. Simply being stationed overseas rarely will affect a servicemember's ability to participate, given thirty days of paid leave per year, the availability of telephonic testimony, and modern communications that make it easy to retain counsel from afar.
Stay of Proceedings When Servicemember Has Notice
A court may stay proceedings for at least ninety days on its own motion, and shall do so on application by a servicemember(fn17) when the following criteria are met:
1) the request is filed during the military service or within ninety days after the service ends;
2) the applicant has actual notice of the proceeding;
3) the application is in writing and includes facts stating how military service materially affects the ability to appear and a date when the servicemember may appear; and
4) the application includes a communication from the servicemember's commander that the military duty prevents appearance and leave is not available.
The initial ninety-day stay is mandatory. Thereafter, the servicemember may apply for an additional stay, using the same criteria. The court may deny a subsequent application, however, provided that an attorney is appointed to represent the servicemember.
Parenting Issues
Lack of geographic stability is a fact of life for military personnel and their families. In a 2001 report, the U.S. General Accounting Office found that the average tour length for military personnel was two years.(fn18) Military families often come to...
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