Don’t be so quick to file divorce or file your response. First, thoroughly research information on each possible state of jurisdiction. Filing for military divorce in one state vs another can have significant impact on the final outcome of your decree.
The case of LANSFORD v. LANSFORD, explored jurisdiction laws for South Carolina and New York.
A significant portion of the marriage was spent overseas in Germany. There was one child. Upon separation, the military spouse returned from Germany to NY, her home state in which she grew up. The service member eventually returned to South Carolina, which happened to also be his home of record (for taxes) while stationed overseas. Both parties filed motions in their respective state. Due to no response from the wife, South Carolina granted a divorce on default. This South Carolina decree also made a determination for child support, visitation rights, distribution of property, and denied the wife alimony. The service member then moved to dismiss the New York case, based on divorce already granted.
The spouse claimed South Carolina lacked jurisdiction over her, as she never had residency there. (Also recall, that she did not respond to any legal action in the South Carolina case—which often acknowledges or recognizes acceptance of jurisdiction authority.)
Military Divorce Split Jurisdiction
The questions arising are:
Does a spouse’s residency revert to that of the service member during the period assigned overseas?
Do joint tax returns act as an acknowledgement of change of residency?
Some language used in the final decision:
“Although at one time a wife had to adopt the domicile of the husband, a husband may no longer assert an overriding control of the choice of a matrimonial domicile. Pursuant to sections 61 and 231 of the Domestic Relations Law a wife has the same capacity to acquire a domicile of her choice as does her husband. There is no legal barrier to a wife continuing her domicile after her marriage (Geiser v Geiser, 102 Misc.2d 862; Small v Small, 96 Misc.2d 469)…when the State has no personal jurisdiction over the other spouse, the decree insofar as it affects that spouse’s economic or property rights, becomes ineffectual…” see source
The outcome was that the courts declared the divorce decree awarded by South Carolina to be recognized as dissolving the marriage, but the military spouse’s economic, property rights, visitation, and child custody should be decided by New York.
Why Do We Care about Military Divorce Jurisdiction?
While the USFSPA declared that states may treat retirement pay as divisible, the federal law did not say how and thus there are some significant differences across states. Before filing, both the service member and military spouse should compare rules across states. Unfortunately, this usually means more laywers, and more dollars. You can help provide free information by submitting your knowledge of state cases here.
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