San Antonio Divorce Lawyer Blog

Texas Military Divorces--Jurisdictional Issues

Military service members who seek a Texas divorce attorney often find themselves faced with several jurisdictional issues.  The term "jurisdiction" means the Court's authority to excercise power over a case and/or over the parties to the case.

There are two types of jurisdiction--subject matter jurisdiction and personal jurisdiction.  Subject matter jurisdiction means that the Court has to have the authority to make a determination in that type of case.  For instance, the Uniform Child Custody Jurisdiction and Enforcement Act, a version of which has been adopted by virtually all the states in the U.S., states that a state court does not have jurisdiction to make a child-custody determination if the child has been residing in some other state or country for more than six months at the time the case is filed.  That means that a Texas Court would not have "subject-matter jurisdiction" over such a case, and has no authority to hear the case, even if both parties agree for the Court to hear it.  This is an over-simplification, since there are several exceptions to the six-month rule, but the purpose of mentioning it was solely to explain the meaning of the term "subject matter jurisdiction".

In contrast, the term "personal jurisdiction" refers to the Court's authority to order an individual to do something--i.e., to exercise power over that individual.  Texas divorces often involve parties who are in other parts of the country, or the world for that matter, especially when military service members are involved.  The U.S. Supreme Court has ruled that the U.S. Constitution requires that certain conditions be met before a court in one state may exercise jurisdiction over a person residing in another state.  The Texas Family Code lists certain conditions which have "passed constitutional muster" which automatically confer Texas jurisdiction over an out-of-state litigant.  The general rule considers whether or not the out-of-state litigant has availed himself/herself of the privileges of that state, or otherwise committed any acts such that he or she should not be surprised to be sued in Texas.

In the divorce context, a Texas divorce attorney is often approached by military service members who have been stationed in Texas for a while, but whose spouse resides in another state.  If the attorney determines that Texas does not have personal jurisdiction over the absent spouse, he or she must advise the client of that fact.  All that being said, lack of personal jurisdiction over the out-of-state spouse will not prevent the resident spouse from getting divorce.  Texas courts have held that the divorce is a "status determination" and does not require personal jurisdiction over the absent spouse.  However, personal jurisdiction IS necessary for the Court to divide property.  Therefore, when the Court lacks personal jurisdiction over an out-of-state spouse, the Court may be limited solely to granting the divorce.  Division of property (and anything else which requires personal jurisdiction) may then have to be decided at a later time, possibly in a different state.

Obviously, lack of personal jurisdiction can cause major complications to a Texas divorce.  If your spouse resides outside of Texas, be sure your attorney is familiar with personal jurisdiction issues.

Military Divorce Issues in San Antonio, Texas

One of the most common questions I hear, as a San Antonio, Texas divorce lawyer, is: "Do you handle military divorces?"  Military servicemembers often find themselves in need of a San Antonio, Texas, divorce attorney, whether or not they are stationed in San Antonio, Texas or in other parts of the world.  I currently have active divorce cases with clients who live in Europe, the Mideast, Africa, Japan--virtually every part of the world.  Many of these clients have never met me in person, since it is generally impractical for them to come all the way to the United States just to have an initial conference with me.  Instead, I offer free initial telephone consultations and I make myself available during weekends and evenings to accomplish the servicemember's schedule.

What makes a military divorce different than a non-military divorce?  Although a divorce involing a miitary servicememeber is in many ways identical to a divorce which does not involve a military service member, there are some important differences, chief among those being the issue of military retirement benefits.  How military retirement benefits are treated is generally left up to the state in which the service member is being divorced, with certain limitations mandated by federal law.  For instance, federal law generally prohibits any state from awarding VA Disability Benefits to the non-service member spouse.

Many servicemembers mistakenly believe that the non-service member spouse is only entitled to a portion of the  servicemember's military retirement benefits if the parties have been married for more than 10 years.  The source of this mistake is the federal law which prohibits direct payment of those benefits to the non-servicemember spouse unless the parties have been married more than 10 years, during which time the servicemember was engaged in full-time active duty service.  In Texas, any retirement benefits which accrue during the marriage are usually treated as community property.  If the parties have been married less than ten years, a portion of the retirement benefits can, and usually is awarded to the non-seservice member spouse, and the servicemember spouse is required to pay a portion of his/her retirement to the nonservice member (ex)spouse once the servicemember retires, or immediately if the servicemember spouse is already retired at the time of the divorce.

Related to the issue of military retirement benefits is the Survivor Benefit Plan Election.  This can be an extremely complicated issue, and the details are beyond the scope of this posting.  Under federal law, military retirement benefit payments to a former spouse usually terminate upon the death of the servicemember (or the former spouse). The SBPA is similar to a life insurance policy, and provides for continued payments to the non-servicemember spouse or former spouse in the event of the servicemember's death after retirement.  This is an over-simplification of the SBPA law, so suffice it to say that the SBPA is an issue which should be addressed by the client with his or her divorce lawyer early on in the divorce process whenever military retirement benefits have accrued during the marriage.

Another important issue in a Texas divorce involving a military service member is whether or not the non-military servicemember spouse will continue to be entitled to military health-care benefits after the divorce.  This issue is mandated by federal law, and depends on the amount of time the parties have been married and the amount of time the servicemember spouse has been engated in full-time active duty military service.

The issue of child support can also be different in a Texas divorce involving military service members.  Typically, the issue arises regarding the inclusion of the servicemember's non-taxable entitlements such as allowances for housing, sustenance, clothing, etc.  Texas law requires that all types of income be included to determine the "net resources" of any person who will be ordered to pay child support, but the Bexar County judges do not always treat those entitlements identically.  A related issue is whether the value of on-base housing should be included in a service-member's net resources.