The topic of service of process connected to a military divorce is really a discussion about jurisdiction. Jurisdiction refers to a courts ability to grant a divorce to a married couple. Service of process represents the first step in that court obtaining jurisdiction. Since this is not a topic that we discuss much on this blog and is not one that I think is discussed much in our culture I think we need to go over the basics of jurisdiction so that we can better acclimate ourselves to this topic.
Service a process is essential to a divorce. When you file for divorce from your spouse notice of your divorce must be provided to your spouse. He or she cannot be a mind reader and suddenly pick up on the fact that you have filed for divorce. Rather, you must make him or her aware of the filing of your case through a formal process called service of process. In most divorce scenarios in Texas this involves a police officer, constable or process server picking up documents from a courthouse and personally serving your spouse with notice face to face.
There are some obvious logistical issues that we may need to sort through when it comes to this topic given your circumstances in being involved in a military marriage. Either you or your spouse may be living in another state besides Texas or even in another country. In that case, you may need to go through additional hoops to have service of process achieved so that a court can have jurisdiction over your divorce in Texas. Let's spend a little bit of time talking about service and process here in the United States.
Is there any difference between the requirements to serve a civilian versus the requirements to serve a member of the military?
The federal law that family law attorneys are familiar with in regard to service of military members is called the Servicemembers Civil Relief Act. Your attorney would be able to guide you on the fact that there are no federal laws that require additional steps to be taken in order to validly serve process upon a member of the military. While there may be some details to work out if you are attempting to serve the military member if he or she is on the job? In other circumstances all you would need to do to serve your military spouse with process and notice would be to follow the laws of Texas in doing so.
As I noted a moment ago, if you are attempting to follow through with service of process on a military base then you would need to look to that branch of the military and whether or not that particular branch has requirements on how service may be effectuated. In some military bases a state retains a certain amount of jurisdiction over the land. On other bases or installations, the federal government may have final say so over service a process requirements by a civilian process server.
So, what this means for you is that if you believe that you're military spouse may resist servicer process then You should check with that branch of the military and with that particular military base about whether or not the military will allow you to serve your spouse. On the other hand, if you believe that your spouse will voluntarily accept service a process than that makes the steps you have to follow much easier. The reality of the situation is that you need to work with a process server who is experienced not only with military service but in serving members of the military at that particular base or installation. Most military bases have an individual who you can work with and coordinate service of process.
The last thing I wanted to mention regarding this subject is in relation to serving a military member if you do not know where he or she is located. In the event that you find yourself in this situation you can utilize government sources on how to locate him or her. For instance, if your spouse is serving in a top secret or otherwise undisclosed location Then You should be able to provide your documentation to the military directly and they will forward any information to your military member spouse.
What about service of process on a military member spouse who is overseas?
It goes without saying that it is more difficult to serve a person who is living abroad than one who is located in the United States. This is even more true if your spouse is in an environment that is dangerous with conflicts ongoing. As a result, it is pretty much impossible from my experience to be able to serve a person who was in one of these scenarios. There exist certain treaties that the United States and most other nations have agreed to as far as following service of process rules across borders.
However, each country tends to administer these laws differently and in a war zone situation the governments of these nations may not be functioning to the point where service is possible. In general, even if you were able to serve your military member spouse overseas it is likely that the relief act mentioned above would prevent you from proceeding with your divorce until he or she returned home from deployment.
Another key point to be aware of is that the military word will not serve your spouse with divorce paperwork against his or he'll her will. If military administrators receive a request to serve upon your spouse divorce papers then he or she will determine whether your spouse would like to accept service voluntarily. Your spouse will be able to seek the opinion of an attorney and if he or she will not accept service voluntarily then you would be notified and told to follow certain procedures based on the physical location of your spouse. The laws of the country where your spouse’s residing would take over at that point.
What is personal jurisdiction in relation to your military spouse?
If a court has personal jurisdiction over, you and your spouse it means that you are subject to its rulings. Without personal jurisdiction Your divorce court would not be able to cause you to do anything in its orders would have no impact on your children or on your property. Law school students learn about personal jurisdiction in our Civil Procedure classes. If a court does not have personal jurisdiction over, you that would prevent you from having to go before a court over matters unrelated to you.
If your spouse is in the United States, then a state family court would be able to get personal jurisdiction over him or her when he or she is served with process within Texas. There are also laws passed by the state of Texas that allow for Texas to take personal jurisdiction over someone who may not have many ties to our state. These so-called long arm jurisdiction statutes state that Texas has jurisdiction regarding subjects like child support and spousal maintenance over your spouse if he or she left the state as long as you have maintained continuous contact with Texas in the state has personal jurisdiction over you.
I think one of the most significant aspects to this whole discussion concerns personal jurisdiction over your military member spouse in regard to their military retirement. If you and your spouse have been married for a lengthy period of time, then Their or your military retirement benefits are likely subject to division. However, if a court lacks jurisdiction Over the subject matter of the case then it will not be possible for the court to divide up your retirement benefits.
Subject matter jurisdiction and your divorce in a military marriage
When a family court in Texas has subject matter jurisdiction over your case then it has the authority to hold hearings and issue rulings on the subject matter contained within your marriage. Subject matter jurisdiction Prevents you or your spouse from trying to hop around to different courts either in Texas or other states in order to obtain a more favorable venue for your case. For example, once Harris County determines that it has jurisdiction over your case then you will know that your case will be heard only in Harris County.
For a Harris County family court to have subject matter jurisdiction over your case you or your spouse must have been a resident of Texas for at least six months prior to filing for your divorce and a resident of Harris County for at least three months prior to filing your divorce. Most of the time this is not a tricky subject in divorce cases in Texas. However, a military divorce can be trickier. You will need to be able to show that your military spouse as spent time in Texas at least enough to get a driver’s license, a bank account or something tangible to tie him or her to this state. Unless you are military spouse goes to great lengths to establish residency in another state where he or she is stationed, it is likely that Texas would be considered his or her residence.
What does all this mean for your military divorce?
At this point, you may be reconsidering how viable it is for you to get a divorce in the first place. After all: I've walked you through a number of different scenarios surrounding military divorces and they all seem to be more convoluted and complicated than a civilian divorce. However, despite the apparent challenges of a military divorce compared to a civilian divorce I can tell you that the subject matter of your divorce case does not need to prevent you from getting divorced if that is what you want to do.
It does take a little bit more planning and forethought in order to get a military divorce off the ground. We've already covered why this is: simply locating and serving your military spouse with process can be among the most difficult steps of your case. However, once you get this stuff taken care of and plan for the remainder of your case you should be able to proceed without much of a problem.
the best thing that you can do for yourself is to hire a family law attorney in Texas who is experienced in handling military divorces for Texas families. This is even more true in the event that you are not physically in Texas right now but wish to get divorced here due to your residency in Southeast Texas. Every divorce comes in different shapes and sizes. There are no two divorces that are exactly the same even if their circumstances appeared to be very similar. your military divorce may have aspects that are more difficult to work through but that is why building a level of trust and teamwork with your attorneys so important.
Once you determine that a divorce is right for you and your family it becomes incumbent upon you to begin planning for that process. Do not wait until the last minute to start to look for an attorney and plan out the goals for your case. Be intentional about what you want to achieve and how you are going to achieve those goals. Make the goal specific and give yourself a timeline to achieve them. All this begins by interviewing and speaking to a licensed family law attorney in Texas who can help you to fine-tune those goals and begin the process of filing for divorce.
Questions about divorce as a military family in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan. Fagan. Our licensed family law attorneys offer free of charge consultation six days a week. These consultations go a long way towards helping you learn more about Texas family law and about the services that we provide to our clients.