Military Pension Division: Claims for Relief That Cannot Be Granted

By Mark Sullivan

Every once in a while, a claim to divide military retirement benefits is met with a motion to dismiss.

Sometimes such a defense is well-taken, and sometimes it’s a stalling tactic or it’s based on a misapprehension of the law.

Here’s a short summary of jurisdiction and the division of the military pension.

 

  1. It’s a rare case when the court lacks subject matter jurisdiction over pension division. It would possibly occur in one of two scenarios—either the case is brought in the wrong court (e.g., a property division claim filed in juvenile court) or the claim asks for relief which cannot be granted. Examples of this latter issue might be
      • A claim which requests more than 50% of the pension for the former spouse, since federal law limits the division of military retired pay to 50%; or
      • A claim asking that the court order pension payments begin immediately, even though “John Doe” is still serving (the remedy of immediate payments upon attainment of retirement eligibility is limited to half a dozen Western community property states).
      • More on subject matter jurisdiction in the military pension division case will be found in Poindexter v. Everhart, No. COA19-646 (N. C. Ct. App., Feb.18, 2020).
  2. If the motion refers to “personal jurisdiction,” then you’ll find the three federal bases for the court’s authority in the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408 at section (c)(4).
  3. This section states that a state court has jurisdiction to divide John Doe’s pension if he is domiciled in that state, if he resides there (but not due to military assignment), or if he has consented to the jurisdiction of the court.
  4. Domicile is not necessarily John Doe’s “home of record.” That is an administrative entry reflecting the place from which the SM entered military service, and it is used by the armed forces to set aside a budgeted amount that will allow his household goods to be shipped back to that location when he’s separated from the service. While it may be his domicile, that’s not certain, and domicile always depends on a number of other factors. John must have lived in State A for a period of time and he must have intended to reside there indefinitely; if those two elements are met, then State A is his domicile.
  5. The second residence test for “John Doe” is rarely used. Here’s how it’s worded: “his residence, other than because of military assignment, in the territorial jurisdiction of the court.” It means that he’s assigned to a base in State A but he’s living in State B. Suppose that John lives in Gulf Shores, Alabama, where he’s got a room in his parents’ house. He’s assigned to NAS (Naval Air Station) Pensacola in Florida, 45 minutes away. Under this test, the court in Alabama would have jurisdiction, since he wasn’t living in that state due to his military assignment.
  6. The third test is John’s consent to the jurisdiction of the court. It doesn’t mean he’s filed a consent to have his pension divided. It refers instead to any actions of his which recognize the authority of the court to enter an order regarding division of his pension.  When it’s the actions of John in the lawsuit, such as filing motions or pleadings, the term is “general appearance.”
  7. It also could involve things outside of the pleadings in the lawsuit, such as
    • signing a separation agreement stating that North Carolina is the place where the court would divide John’s pension;
    • suing the other party in this state for enforcement of their agreement; or
    • John’s obtaining in another state a divorce decree stating that all property division issues would be decided in North Carolina.
    • All of those were facts in the Poindexter decision, mentioned above.
  8. The only motion protected by federal law from being treated as a general appearance is a request for a stay of proceedings under the Servicemembers Civil Relief Act. The SCRA states that a stay request isn’t a general appearance or a waiver of John’s potential defense regarding in personam jurisdiction. Here’s what 50 U.S.C. § 3932(c) says:

    An application for a stay under this section does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense relating to lack of personal jurisdiction).

/by