In re the Marriage of LISA and JEREMIAH J. SULLIVAN, III

Military retirement benefits can be a contentious issue in divorce cases involving service members. The Uniformed Services Former Spouses' Protection Act (FUSFSPA) allows state courts to divide military retirement benefits as marital property in divorce cases. However, the question of whether a service member must explicitly consent to the court's authority to divide their pension has been a subject of debate in the legal community.

In a recent ruling, the court rejected the trial court's requirement for explicit consent from the service member. The court concluded that since the FUSFSPA only requires consent to the jurisdiction of the court, not consent to the court's authority to divide the pension, such a requirement is not appropriate. The court also noted that the majority of jurisdictions have rejected such a requirement.

Under FUSFSPA, a state court may not exercise the power to divide a military pension “unless the court has jurisdiction over the [service] member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.”  (10 U.S.C. § 1408(c)(4).)  The “minimum contacts” theory of personal jurisdiction is “conspicuously” and “purposefully absent” from this list. 

Congress enacted this jurisdictional provision “in response to concerns about ‘forum-shopping’ spouses who might seek to divide the pension in a state with more favorable laws, but with little contact with the pensioner.”  (Hattis, supra, 196 Cal.App.3d at p. 1167; see also Mansell, supra, 490 U.S. at p. 591 [“[10 U.S.C.] § 1408(c)(4) prevents spouses from forum shopping for a State with favorable divorce laws”].) 

As one of the reasons for it’s conclusion, the Court explained, “In her dissolution petition, Lisa specifically asked the court to “[c]onfirm as [her] separate property . . . [a]ll property acquired prior to the date of marriage . . . .”  (Italics added.)  This necessarily included the portion of her military retirement attributable to her Navy employment before marriage, which constituted her separate property.  (In re Marriage of Stenquist (1978) 21 Cal.3d 779, 788; Fam. Code, § 770, subd. (a)(1).)  Lisa also asked the court to determine her rights to any community property assets acquired during the marriage.  Although the filled-out portion of her petition only listed four real properties and a sailboat as community property, it also stated more broadly:  “The nature and extent of any community and quasi-community assets and debts are unknown to Petitioner at this time and are to be determined during the course of this proceeding.”  (Italics added.)  Thus, the petition used broad language to request a judicial determination of Lisa’s rights to “any” community property.  The portion of Lisa’s military retirement attributable to her Navy employment during the marriage is community property.  (Wilson, supra, 10 Cal.3d at p. 854.)  And Lisa’s petition also expressed her desire for “a full agreement on all issues” relating to the community property.  By asking the court to confirm as her separate property all property acquired before marriage, and determine her rights to any community property acquired during the marriage, Lisa consented to the court’s exercise of jurisdiction over her military retirement benefits.”

The court concluded that Lisa, a service member, had consented to the court's jurisdiction to divide her military pension. Lisa had filed her petition for dissolution of marriage in a California court, and as such, had implicitly consented to the court's jurisdiction over her. This ruling clarifies the issue of consent in military retirement benefit cases. It also highlights the importance of seeking legal advice when dealing with divorce cases such as where to file and military retirement benefits.

What could have Lisa done differently to have assisted her case?

1. Filed her Petition in New Jersey

2. Not Have Made a General Appearance in California

3. Carefully Crafted her Petition documents to request specific exclusion of her military retirement

However, under FUFSPA, these approaches may not have worked because it is specifically drafted to prevent forum shopping. However, this case does highlight the importance of the Petition documents (and all Judicial Council forms) and considering the choice of forum from the initiation of the case.

It is important to note that the division of military retirement benefits and jurisdiction in divorce cases is a complex issue, and the specifics of each case can vary widely. It is always advised parties seek the advice of a qualified attorney to ensure that their rights are protected and their interests are represented.

This article is a service of Baron Family Law. We understand that navigating legal matters can be overwhelming and complicated. That's why we're here to help you every step of the way. You can begin by calling our office at (916) 905-0024 or scheduling online to book a free consultation with our intake manager.