NoTime2Waste said:
What is the name of your state? California.
California courts are hearing the divorce but My military husband will not consent to Jurisdiction regarding pension division. (New York).
Will I be able to make a special appearance before a New York court on that one issue (Pension division) during the divorce in California?
My response:
Are you doing this on your own? Do you have an attorney? Are you, and your attorney, familiar with the Uniformed Services Former Spouses' Protection Act (USFSPA, 10 USCA § 1408). As part of that Act, the state courts are fully empowered to divide military retirement pay as community property; and state court domestic relations community property division and support orders are fully enforceable against the military.
USFSPA exception--superseding statutory "contacts" required in actions dividing military pensions:
The "minimum contacts" jurisdictional alternative is superseded in actions to divide marital property interests in military retirement pay. Under federal law (Uniformed Services Former Spouses' Protection Act, state courts may issue valid orders against a military pension only if the court has jurisdiction over the military member on the basis of domicile, residence or consent (10 USCA § 1408(c)(4)) at the time the military pension matter is litigated. [Marriage of Hattis (1987) 196 Cal.App.3d 1162, 1168-1170, 242 Cal.Rptr. 410, 413-415; Marriage of Tucker (1991) 226 Cal.App.3d 1249, 1255-1256, 277 Cal.Rptr. 403, 406-407]
Impact in "mixed issue" cases:
When several domestic relations-related issues are joined against a nonresident military member, two different jurisdictional standards might apply; in turn, California courts may both have jurisdiction over nonpension issues in the dissolution proceeding and at the same time lack jurisdiction to divide the military member's pension under the USFSPA. [Marriage of Hattis, supra, 196 Cal.App.3d at 1170, 242 Cal.Rptr. at 415; Marriage of Tucker, supra, 226 Cal.App.3d at 1256, 277 Cal.Rptr. at 406-407]
"Consent" to jurisdiction:
A nonresident military member may effectively consent to California jurisdiction over one portion of a dissolution proceeding and at the same time argue the California court has no power under the USFSPA to divide his or her military pension.
A motion to quash service of summons is not required to preserve the USFSPA jurisdictional defense . . . since the defense is more akin to the doctrine of forum non conveniens (which need not be raised before filing a responsive pleading, see Ch. 4) than to any lack of personal jurisdiction. [Marriage of Tucker, supra, 226 Cal.App.3d at 1256-1257, 277 Cal.Rptr. at 407-408 & fn. 1--H preserved USFSPA objection by allegations in response and accompanying declaration (also commenting that USFSPA actually provides military personnel with an objection "which goes to the subject matter jurisdiction of the court and which in general may be raised at anytime"; emphasis added)]
Minimum contacts jurisdiction:
Similarly, a nonresident military member may meet the "minimum contacts" test for purposes of empowering a California court to adjudicate child support issues and at the same time lack the requisite USFSPA present contacts that would empower the California court to entertain a concurrent request to partition the member's military pension.
This is what happened in Hattis, above. H (a nonresident military member) had sufficient "minimum contacts" to support the exercise of California personal jurisdiction on W's request for a child support modification (parties were married in Calif. and resided periodically here, and H had "caused an effect" in Calif. by withholding support thereby requiring W to turn to State Medi-Cal for child medical care). But H did not have the requisite USFSPA contacts for purposes of empowering the California court to adjudicate W's request for a postjudgment partition of H's military pension. As a result, H's motion to quash on the child support matter was properly denied, while his motion to quash on the pension matter had to be granted! [Marriage of Hattis, supra, 196 Cal.App.3d at 1170, 242 Cal.Rptr. at 415]
IAAL
