Vermont Bar Journal, Vol. 40, No. 2 Fall 2014, Vol. 40, No. 3 | Page 31

Peremptory Settings Another issue that counsel for the SM should address is the obtaining of a priority or peremptory setting for the divorce hearing. In fact, the SM’s attorney should consider this for any hearing in which the SM’s live testimony is required. Usually this is a matter of reading the state’s rules of civil procedure, rules of general practice, or the local rules to see what elements are necessary for a peremptory setting. For example, there may be priority-setting rules that apply when there are numerous witnesses for a trial. Rules also might exist for the situation in which the court needs to hear from witnesses who are coming to court from far away. Rules might also apply when there are witnesses whose personal or professional schedules are difficult to coordinate with the trial calendar (such as a busy surgeon or a parent whose child needs daily physical therapy). Most courts have rules that govern these situations. Concluding Comments “Share the load” was the theme of the 1969 hit by the Hollies, “He Ain’t Heavy … He’s My Brother.” Bill Withers echoed the same thoughts in his 1972 hit song, “Lean on Me.” Why should you carry the whole case when you can get help in handling a military divorce? If you don’t do this type of case often, you should consider associating co-counsel or a consultant. You can find a Guard or Reserve judge advocate for your partner, or perhaps an attorney who is a retired JAG officer. Wherever you go, remember that the duty to obtain competent cocounsel is an ethical requirement. A consultant for your next military case will: Know the statutes (the Uniformed Services Former Spouses’ Protection Act, or USFSPA, found at 10 U.S.C. 1408; the Survivor Benefit Plan, found at 10 U.S.C. 1447-1455; and the numerous military retirement sections in the U.S. Code); Understand the rules (the DODFMR, or Department of Defense Financial Management Regulation, and the parallel regulawww.vtbar.org tions for Coast Guard, Public Health Service and National Oceanographic and Atmospheric Administration, or NOAA); Know the law in other states (some states have no cases or statutes on such issues as who pays for SBP, what the SBP benefit level is, and division of accrued leave; knowing what other states are doing in these areas means you can provide useful guidance for your trial judge); Have examples (samples of such documents as the Leave and Earnings Statement, the Retiree Account Statement or the TSP Quarterly Statement, so you can provide these to the other side when the opposing party professes ignorance about what document you’re talking about); and Know the ropes (have contact points within DFAS and other federal agencies who can answer questions). ____________________ Mark E. Sullivan, Esq., is a retired Army Reserve JAG colonel. He practices family law in Raleigh, North Carolina, and is the author of The Military Divorce Handbook (Am. Bar Assn., 2nd Ed. 2011) and many internet resources on military family law issues. A Fellow of the American Academy of Matrimonial Lawyers, Mr. Sullivan has been a board-certified specialist in family law since 1989. He works with attorneys and judges nationwide as a consultant and an expert witness on military divorce issues in drafting military pension division orders. He can be reached at 919-832-8507 and [email protected]. ____________________ “HELP! It’s My First Military Divorce Case” use depositions or summary judgment to cut down on expenses for personal appearances in divorce hearings. In most states, the proceedings leading to a divorce judgment are getting to be more and more a matter of formality. This is especially true if the parties have settled all their disputes and differences through a separation agreement and property settlement. All states now have a straightforward no-fault divorce procedure, based upon some period of separation or upon some standard of breakdown of the marriage (e.g., “irreconcilable differences”). 1 Williams v. North Carolina, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577 (1945). 2 Summary based on George H. Fischer, Annotation, Residence or Domicile, for Purposes of Divorce Action, of One in Armed Forces, 21 A.L.R. 2d 1183. 3 50 U.S.C. App. § 571. 4 50 U.S.C. App. § 595. 5 Chart based on  Major Wendy P. Daknis, Home Sweet Home: A Practical Approach to Domicile, 177 Mil. L. Rev. 49, 78–79 (2004). 6 See, e.g., Shankles v. Shankles, 445 S.W.2d 803 (Tex. App. 1969); Crownover v. Crownover, 58 N.M. 597, 274 P.2d 127 (1954). See also James D. Pearson, Jr., Annotation, Validity and Construction of Statutory Provision Relating to Jurisdiction of Court for Purpose of Divorce for Servicemen, 73 A.L.R. 3d 431 §§ 9a, 10 (2002). 7 The parties’ marriage must be concurrent with at least ten years of service creditable for retired pay purposes. 10 U.S.C. §  1408(d)(2). 8 10 U.S.C. § 1062. 9 The state of legal residence of at least one of the parties at the time of filing may dissolve a marriage. Restatement (Second) of Conflict of Laws §  11, cmt. c (1971). THE VERMONT BAR JOURNAL • FALL 2014 31