143
Avoiding Mines: What Counsel
Should Know When Handling a
Military Divorce Case
MARK E. SULLIVAN* &
KRISTOPHER J. HILSCHER**
Introduction
Sally Green, a servicemember, has just hired you to handle the divorce
case!
Before the ink is dry on the legal services contract, you are probably
thinking, “Now what? I know next to nothing about how to handle a
military divorce.” The purpose of this Article is to provide an overview of
legal issues that any lawyer, from the most seasoned litigator to the new
associate, may encounter when handling a family law case in which one
(or both) of the parties is serving or has served in the armed forces.
I. Where Can I File?
North Carolina, is a retired Army Reserve JAG colonel. Sullivan is the author of The Military
Divorce Handbook (Am. Bar Ass’n, 3d ed. 2019) and several internet resources on military
family law issues. He and co-author Kristopher J. Hilscher work with attorneys nationwide
on military divorce issues, drafting military pension division orders and tackling many other
military family law issues.
He focuses his practice on an array of family law issues, including those affecting military
servicemembers.
Published in Family Law Quarterly, Volume 53, Numbers 1 & 2, Spring/Summer 2019. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
144 Family Law Quarterly, Volume 53, Number 2, Summer 2019
them to a colleague in another state. The question is whether your state has
jurisdiction over Sally Green, and the issue in most cases is domicile. In
military cases, the determination of domicile can be complex. Domicile is
usually the place where a person presently resides. In the case of temporary
absence, it can also be the place to which one intends to return, the place of
his or her true, permanent home. The two essential elements of domicile
are (1) a residence in a place where the person is physically present and
(2) the person’s intention to remain at that residence. If the person was
previously domiciled elsewhere, that domicile must be abandoned in order
to acquire the current domicile.1 Every individual is domiciled somewhere
at all times; therefore, a domicile continues (once established) until it is
replaced with a new domicile. Domicile is not a servicemember’s “home
of record.” The term “home of record” is a term the military services use
for the state where a person enters the service or reenlists, and it does not
equate to domicile.
Domicile is a critical issue in military cases due to involuntary relocations
of servicemembers and their families. Military orders to another state or
country do not necessarily mean that our client, Sally Green, has changed
her domicile. Many state courts have held that domicile continues even
though Sally Green may be stationed in different states, or countries, for
years.2
A practitioner should ask questions to determine the client’s history,
using a domicile checklist.3 The questions and issues should include items
such as state income tax, addresses used for tax purposes, ownership
of real estate, voter registration, vehicle registration, driver’s license,
professional licenses, and so forth. Domicile is based upon the totality of
circumstances, so this list is not exhaustive.
Counsel should ask Sally Green about her actions. Did she make a
formal declaration of her intent? Did she move her family to the state? Did
she declare the state her residence on other documents such as wills, deeds,
leases, contracts, mortgages, or insurance policies? Did she execute a DD
sole or primary residence. As mentioned, the intent to remain is also required.
2. See, e.g., Israel v. Israel, 121 S.E.2d 713, 715 (N.C. 1961); Edwards v. Edwards, 709
S.W.2d 165, 168 (Mo. Ct. App. 1986).
3. For an example of such a checklist, see Mark Sullivan, Silent Partner: Divorce and
Domicile, LEGAL ASSISTANCE FOR MILITARY PERS., https://www.nclamp.gov/publications/silent-
partners/divorce-and-domicile/ (last visited Sept. 17, 2019).
Published in Family Law Quarterly, Volume 53, Numbers 1 & 2, Spring/Summer 2019. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
