Jurisdictional questions vary by the type of pension it is, and also depend on the person’s residency. For civilian employees, generally if everyone lives in one state, your state will govern that. Military, in order for a state to have jurisdiction to divide a military pension – it’s a little quirky because the military member has to be a resident of the state where the divorce court is, for reasons other than his military assignment. He has to be a domiciliary of that state or he has to consent to the jurisdiction of the court. What this really means is, if you’re just in Virginia because you’re assigned to a military base here, but your actual domicilia is in Pennsylvania, Pennsylvania is where you intend to live. Residence is where you live, domiciliary is where you live and intend to remain. If you’re absent from your domicile because you’re on military assignment to Virginia, you’re a Virginia resident but a Pennsylvania domiciliary. If you don’t consent to the jurisdiction of the court, then the Virginia court cannot divide your pension.
People consent to the jurisdiction of the court by filing an answer, or asking for something. Oftentimes military members consent and they don’t realize they have because they filed an answer, or they consent because they need to get a custody order, they need to see their children, or they need support if they’re the ones. It’s a little quirky, and there are actually ways to avoid having the divorce court have jurisdiction over your pension, but it’s kind of rare to have a case that fits those fact patterns, but it is done.
The issue with Foreign Service is generally where the last place they lived. If you have the foreign services headquartered in Washington D.C. and the training institute is in Virginia, most Foreign Service members live in Virginia and between assignments – but not all of them. Often it’s not that rare that they’ve lived in Rhode Island, went overseas, and come back to Virginia temporarily. It’s not the same domiciliary requirement issues with the military, but they had to have lived somewhere. The last place they lived together in the US is generally – if they have to file for divorce either overseas – where you pick.
You have to make sure you have the right jurisdiction that would have personal jurisdiction over the Foreign Service member in order to divide the pension. The moving is a little tricky for the Foreign Service.
Carolyn Grimes is a family lawyer at the law firm of Wade Grimes Friedman Sutter & Leischner PLLC in Alexandria, Virginia. To learn more about Grimes and her firm, visit www.oldtownlawyers.com.