Absence of Domicile in Military Divorces: Full Faith and Due Process Requirements

• Author: Captain Uldric L. Fiore, Jr.
• Pages: 07

1. INTRODUCTION

   This article is designed to examine the jurisdictional basis for divorce and its impactan the service member. The analysis includes brief consideration of state military provi~ionsand the protectionsaf the Soldiers' and Sailors' Civil Relief Act (SSCRA)l in the area of divorce. Theemphasis. however, ison the traditional issuesof subject matter and personal jurisdiction and on the jurisdictional impact of the Uniformed Services Former Spouses' Pratectmn Act (USFSPA).*

   11. JURISDICTIONAL BASIS FOR DIVORCE

   Under our system of law judicial power togrant divorce-. jurisdiction, strictly speaking--is founded on domicile.8

   Domicile is the permanent relationship between the person and the state whichcontrolsthecreationofsignificantlegal relationsand responsibilities.' Marriage and divorce are incidents of domicile. Ever>- person must haveadomicile: however, husbandand wife need not share the same domicile.

   The iurisdictianal impart of domicile in dworcecases derives from the Full Faith and Credit Clause of the Constitution.s A divorce decree issued by a court of a state where one spouse is domiciled is entitled to full faith and credit in the courts of the other States of the

   *Judge Adiocate Generals C ~ r w United Slates Arm) Currentls Bstigned 88 Trial

   Atrarne). Confiaethppealr Divlilon,C S.ArmyLega1 ServicpsAgenei.1983rodateFormerly Deputy StafiJudge Advocate. 2d Infantry Division, CampCasey Re ublic

   Rutgars Universir?. 1979 B S,

   United Stales Military Academy 1978 Member of the bar of the state af llea Jersey.

   '50 C S Code App $0 601-91 119761%Pub L. So. 91-252. Tit X 51 1001-06 96 Stsf 730 (Sept 8 1932) STilliami ,,. North Carolina 326 C S 226, 229 119461.

   IIdEC s Const art I' 6 I

   MILITARY LhW REVIER [YOL. 102

   union.6 Residence, as distinguished from domicile, is an insufficient basis to guarantee B decree full faith and credit. This distinction 1s

   the outgrowth of the "res" theory of marriage and divorce, which classifies divorce proceedings as both in rem because marriage involves a status and tn personam, to the exKent that property rights are adjudicated.d Domicile is the prerequisite for subject matter jurisdiction oyer the ''ies" that IS, Over the marital atatus.

   Service members, however. are rarely assigned to their state of domicile. When matrimonial problems arise, service members are frequently an the opposite side of the country or globe from their domicile. Neither entry into the armed forces nor reassignment alone operate to change the domicile of service members or depend-ents.8 Domicile IS changed by establishing a new residence with the intent to remain there permanently.'0 While changing domicile sounds slmpie, intent IS one of the most difficult of proofs: this task is even more difficult for the Service member, whose new residence ISclearly pur3uanK to military orders.

   The vast majority of states hare divorce statutes which require durational residence rather than domiciie.L1 The enactment of such statutes has IIkely resulted from the mobilits of American Society and not the plight af the unhappily married service member. These residenee requirements are often interpreted by the courts as being synonymous with domicile12 or creating a presumption ofdomicile.'s

   In most cases, duration of residence is strongevidence of intent to yemain permanently. The practical effect. however. IS that the over-whelming majority of divorces granted in the United States today have residence as their subjectmatterjurisdictianal basis, with little or no thought given to domicile The unanswered question, and probable reason...