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
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