Kansas City Military Jurisdiction Attorneys

Given the frequent movement of our military servicemembers, most often due to PCS (permanent change of station), issues of jurisdiction for a court to hear a family law case often arise for military families. This can include concerns over whether the court has jurisdiction over the marriage, over the military servicemember and/or over the children involved or even over assets/real property owned by the parties or service member. Often a failure to raise jurisdictional issues can dramatically impact the outcome of your case and thus, it is important that work with an attorney who is knowledgeable about the appropriate state or location that the case should be filed so that the ability of the court to grant a dissolution or divorce judgment, as well as other needed orders is present. 

In order for a court to grant a final divorce judgment generally the court must find the following: 

1. Service of Process – which requires assurance that the military member has received the divorce paperwork. This is often complicated when a military servicemember is serving overseas or even deployed; 
2. Personal Jurisdiction over the member – this is most often accomplished by serving the military member within the state; 
3. Subject-matter jurisdiction to grant the Judgment, this is an important and often overlooked aspect of entry of a judgment and requires that one or both of the spouses are a legal resident of the state involved; 
4. Jurisdiction over the servicemember’s military pension, again, this is an often overlooked area of jurisdiction, but there are some scenarios in which the court may not have the jurisdiction necessary to enter the requisite military pension division order defining the service member’s military pension.

Service of Process of Military Members Within the United States:

Many people incorrectly believe that the Servicemembers Civil Relief Act requires some type of additional requirement for service of civilian litigation (i.e. divorce and family law cases) upon servicemembers. It does not. There is not a federal law that requires that military personnel be served in any fashion different than civilians. A service member serving in the United States can be served as any other civilian, so long as he or she is off post or base. 

One unique difference is what occurs for service when a servicemember is on base. Obviously, the easiest way to obviate these needs is to simply find a time when the servicemember leaves base in his or her daily life and create a service plan for serving them when they are not on post or base. 

If it is determined that service on base is required, generally certain military regulations apply. For example, an Army installation is governed by Army Regulation 27-40 and generally prescribes the following:

1. Exclusive Federal Jurisdiction Land– when there is land that has exclusive federal jurisdiction (i.e. the land belongs solely to the federal government and the state did not retain control over the land), the military regulations indicate that the military member will determine whether they desire to accept voluntary service and if so, they will cooperate on obtaining the service paperwork. 
2. Concurrent/State Jurisdiction Land- on land where the state maintained some or all jurisdictional rights, the relevant state will retain jurisdiction over the land. If the military member does not wish to accept service, the military base will cooperate with a process server (often based on terms prescribed by the military installation) to allow service to be effectuated.  

In practical effect, process servers generally have to work through the marshal’s office to arrange/effectuate service and it may take an extended period of time to negotiate/determine this process. Again, in many of these situations, rather than effectuating formal service, a servicemember’s chain of command will work with him or her to sign a voluntary entry and waiver of service, in lieu of the necessity of formal service. 

Additionally, if you need to serve a military member but cannot find him or her, the military can assist with this. They will forward correspondence, but will not inform of the servicemember’s location. 

Service of Process Overseas:

It is important that servicemembers’ family members understand that it is effectively impossible to serve process on a military service member when they are deployed in a hostile or war zone location. There are both, security and privacy concerns tied to knowing where the service member is located and further, generally in war zones, there is a break down of civil government and thus, no ability to comply with the treaty mandates for international service.  Further, in such situations, even if service was effected, the service member being on active duty in a combat or war zone would be sufficient for them to invoke the Servicemembers Civil Relief Act (SCRA) stay rights until they return from duty. While overseas, typically the military will not cooperate with serving a servicemember without his or her consent. The servicemember is given appointed counsel, if needed, to determine the benefits or risks associated with accepting service of documents. Ultimately, overseas service is governed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. US consular offices generally cannot assist in overseas service of process. 

Personal Jurisdiction over Military Members:

Personal jurisdiction is the court’s power over the parties to the case. Without personal jurisdiction, the court does not have the authority or ability to require someone to do something (i.e. issue court orders). Personal jurisdiction protects people from being hauled into a court if they have no contacts with a state. 

The Court can obtain state court/personal jurisdiction over a service member in a very similar way to civilians as follows:

1. Service of process within the relevant state (Missouri or Kansas);
2. The service member consenting to jurisdiction by either being the filing party or by signing a waiver and acceptance of service, obviating the need for personal service;
3. Satisfying the requirements of the state's long-arm statute. 
4. Note also that if the service member maintains the relevant state in question as their state of legal residence, even if stationed elsewhere, the state of legal residence would have jurisdiction over the servicemember even if served somewhere else; 
5. Finally, it is important to note that personal jurisdiction over a military servicemember alone may not be sufficient to give the state court subject-matter jurisdiction to divide the military retirement (this is discussed in further detail below) 

Subject Matter Jurisdiction

Subject matter jurisdiction references the state court’s authority to hear the case. This type of jurisdiction is intended to prevent the parties from “forum shopping” where someone living in one state would decide that another state that they may have never been to or lived in would give them a more favorable outcome than filing their case in their own state.

Before a party files a family law case, the state must have subject matter jurisdiction over the case. Typically this requires that the spouse is a legal resident where the action is being filed or commenced. For example, that requires in Missouri that a spouse has lived within the state of Missouri for 90 days prior to filing and in Kansas, the threshold is 60 days. 

For non-military servicemembers, legal residence is generally much more straight forward, i.e. if a person lives in the state, he or she is resident. A military spouse can be the exception where they have a legal military residence, but most spouses have established a sufficient foot print in the state that they are living such that they can be considered a domiciled residence, such as getting a driver’s license, a job, living off post in civilian housing, opening a bank account in the state, or doing other actions to transact business in the state in which he or she lives. Technically, if a military spouse lives on base, never gains employment, does not obtain a state driver’s license, does not register to vote and takes no other actions to transact business in the state in which he or she lives, it may be possible that the state lacks jurisdiction over him or her. 

For military servicemembers, the analysis of jurisdiction is more complex. With PCS change of duty stations frequently, the member’s residence change does not automatically grant jurisdiction (simply because he or she is stationed in a particular state).

Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act states that a military member who relocates in compliance with military orders does not lose his or her original state of residence/domicile for purposes of taxing and voting. It does not address residence or domicile for purposes of court actions, but likely, if the sole reason a military service member is residing in a state is due to his or her service, it would be persuasive to argue a lack of jurisdiction.

The Military Spouses Residency Relief Act:

In 2009, Congress enacted the Military Spouses Residency Relief Act which provides military spouses identical rights as service members on the issues of domicile. For the purposes of taxation and voting, a military spouse moving with a member based on military orders does not lose his or her original state of residence, so long as the military service member and the spouse have the same state of legal residence. 

Jurisdiction for Military Retirement Division:

For most military families, the military pension is often the most valuable asset in the marriage. In order for the military pension to be divided, the family court involved must have subject matter jurisdiction over the retirement. 

What is Subject Matter Jurisdiction over the Retirement?

In 1981, the US Supreme Court ruled that states did not have the ability to divide a military retirement through a divorce proceeding. McCarty, 453. U.S. 210 (1981). The federal government responded to this ruling by enacting the Uniformed Services Former Spouses Protection Act (USFSPA). It allows (but does not require) state courts to divorce military retirement upon divorce, legal separation or annulment of marriage. The USFSPA requires that the state court have jurisdiction over the service member either by consent/voluntary waiver of service or legal residence in the state in order to divide the military retirement. Again, this is where sit is a key consideration that simply being stationed in a state, even if service of process was effectuated, was. Not sufficient. 

The USFSPA is a federal law which preempts state law. Absent either consent or domicile, the state court lacks jurisdiction to divide retirement. Consent is not inferred simply from the failure to object to jurisdiction. 

Many military members end up consenting to jurisdiction even though they don’t have to. Often the decision to consent to jurisdiction revolves around one of the following considerations: 

1. Military retirement and maintenance are often threatened by the court as an interchangeable exchange. Meaning, if a military servicemember is going to object to division of the military retirement in the divorce court state, the spouse’s attorney or the judge may attempt to reallocate this issue by asking for an award of maintenance in lieu of the division of the retirement division. This leaves the military member susceptible to double dipping because the maintenance may be awarded and then the spouse could go to a new court of another state to still seek the division of the military retirement.
2. Judges who try to address things in an equitable fashion may elect to award the non-military spouse other assets in lieu of the military pension (again, making the military spouse susceptible to the possibility of a double-dipped award);  
3. The non-military spouse has the ability to file a petition in the military servicemember’s state of legal residence to divide the military retirement. Due to recent changes in federal law, largely the states are dividing military pensions consistently across the states. 

The 10-Year Myth About Dividing Military Retirement:

The Court’s authority to divide the military retirement is not limited by the length of the marriage. The USFSPA states that in order for the Defense Finance and Accounting Service (DFAS) to make direct payment of the former spouse’s share of military retirement, there must be at least 10 years of marriage overlapping 10 years of creditable military service. (known as the “10/10/10” rule). State courts can, however, divide military retirement for spouses who have been married less than ten years, but the service member is then required to pay monthly checks to pay the civilian spouse directly, rather than allowing DFAS to make those payments.

Remarriage and Military Retirement:

Military retirement is a defined benefit pension paying a monthly amount, but it is not alimony or spousal support. As such, a former spouse is not eliminated from receiving his or her share of a military pension due to remarriage. However, if a former spouse remarried while under the age of 55, the former spouse’s SBP payments would terminate so long as that spouse is remarried to someone else.

Conclusion: 

Are you a military servicemember or a spouse? Thank you for your service to our country! If you have complicated questions about jurisdiction and selecting the correct state to litigate your divorce or other family law matter, please call our office and we can assist you with answering questions and making a plan of action going forward. Call Pingel Family Law today at (816) 208-8130 to schedule your consultation.