Vermont Bar Journal, Vol. 40, No. 2 Fall 2014, Vol. 40, No. 3 | Page 29

Residence

Distinct from domicile is the concept of
residence. Residence usually means the
physical location of an individual, divorced
from the intent to remain there permanently, indefinitely, or for any period of time at
all. The terms “domicile” and “residence”
are sometimes confused and may be used
synonymously by courts or statutes.
The state residence requirement for divorce can pose a problem for John Doe,
who will not be a physical resident of his
domicile state unless he is stationed there,
which is normally beyond his control. While
a nonmilitary spouse of a SM may—or may
not—be a domiciliary of the state of military
assignment, the SM rarely is. Many states
have explicit residency statutes; these require the petitioner or plaintiff to have resided in the forum state for six months or
longer next preceding the filing of the lawsuit, in addition to implicit domicile requirements.
Does this mean that John Doe may never obtain a divorce except by filing where
his spouse is domiciled, in effect “bootstrapping” onto his wife’s state of legal residence? Not necessarily. Some states require
physical presence, while others give “constructive credit” to SMs who are absent in-

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voluntarily due to military orders.6 Be sure
to check your state statute closely to determine whether it requires that the SM be
physically present in your jurisdiction for the
period of residency or whether his or her
absence on military orders can be construed
as “constructive presence.”
Military Entitlements and Divorce

A judgment of divorce or dissolution will
affect the rights and entitlements of Jane
Doe, the nonmilitary former spouse, in several ways. Separation means that Jane loses
her right to reside in on-base housing. Most
of the time, except for a long-term marriage concurrent with career military service, at divorce she will usually lose her military ID card, commissary and post exchange
privileges, TRICARE coverage, and medical
care at any MTF (military treatment facility),
such as a clinic, pharmacy, hospital, or dental facility. Unless the court orders “former
spouse coverage,” Jane will lose her right to
the Survivor Benefit Plan, a survivor annuity
that allows her to continue to receive money
after her share of John’s pension ends upon
John’s death.
Defense or Delay

Let’s change the situation. Instead of
John Doe, the client who’s meeting you
next Monday might be Jane Doe. Jane has

THE VERMONT BAR JOURNAL • FALL 2014

been served with “divorce papers” by her
service-member husband, John Doe, and
she wants to know what to do and what her
rights are.
It is sometimes necessary to stop or slow
down a divorce in military cases. There are
several situations in which delay is prudent
and speed might be tantamount to malpractice.
Delay of a divorce is prudent if Jane Doe,
for example, were two months short of having ten years of marriage concurrent with
ten years of the military service of her husband. This is because a 10/10 overlap is
necessary for garnishment of military pension payments (as property division).7 Proceeding with the divorce will not jeopardize
Jane’s pension division rights; the pension
may be divided as marital or community
property regardless of the length of marriage in most states. However, the enforcement of monthly payments will be a problem for her. If the monthly payments are not
taken out of John Doe’s retired pay as a garnishment from DFAS (Defense Finance and
Accounting Service), she will be compelled
to seek direct payments from him. Not relishing the prospect of writing a check to his
ex-wife every month, John will have a strong
incentive to retire in some remote location
overseas (or simply move around from state
to state) so that the obstacles to her receipt
of monthly payments will be virtually insurmountable.

“HELP! It’s My First Military Divorce Case”

opened a post office box there. He may not
have ever visited Florida.

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