Jurisdiction & Service of Process

Before a state has the jurisdiction (authority) to grant a divorce involving a military member, there must be:

  • Service of Process - which is problematic if the military member is overseas or deployed;
  • Personal Jurisdiction over the member - typically it means just serving within the state; and
  • Subject-matter jurisdiction to grant dissolution, which presents challenges if neither spouse is legally a Colorado resident despite being stationed here.

Service of Process Within United States

Many believe that the Servicemembers Civil Relief Act imposes additional requirements for service of civilian process. It does not - there is no federal law requiring that serving military personnel is any different than serving civilians. A service member in the U.S. can be served just like anyone else in accordance with state law, at least while off-post.

For service of process on an Army installation, Army Regulation 27-40, Chapter 2 governs service of civilian process on soldiers, and how to effect service depends upon the how the feds & state agreed jurisdiction would apply:

  • Exclusive Federal Jurisdiction - on land with exclusive federal jurisdiction, the state did not retain any jurisdiction over the land when the state ceded it to the federal government. The main (northern) part of Fort Carson, where the barracks and offices are, is exclusive federal jurisdiction. The Army will determine whether the military member wishes to accept service voluntarily, and if so, will cooperate to effect service of process.
  • Concurrent or Proprietary Jurisdiction - on land where the state withheld some or all jurisdictional rights when the land was ceded to the federal government, the state of Colorado retains jurisdiction over the land. And if the military member does not voluntarily accept service, the military will allow the requesting party to service the military member. Examples of such jurisdiction include the Air Force Academy and “downrange” at Fort Carson.

Practically speaking, regardless of the type of jurisdiction, process servers manage to get military members served, working through the installation provost marshal’s office if necessary. And if the military member signs a waiver of service, then no formal service of process is necessary.

Finally, if you need to serve a military member but do not know where he/she is located, the government has information on how to locate them. In short, the military will forward correspondence to the member, but not give out location information. (The branches of the armed forces used to have convenient worldwide locators for military personnel, but they were shut down in the post-9/11 era. For information that is accessible, see the Obtaining Military Records article).

Service of Process Overseas

First, it is effectively impossible to effect service of process on a military member deployed to a hostile location. Not only are there security & privacy concerns with knowing where the member is located, but often there has been a breakdown of civil government so no ability to follow formal procedures required by treaty. Moreover, even if one did get service of process, the Servicemembers Civil Relief Act would stay proceedings until the member’s return from deployment.

Service of host-nation legal paperwork is typically governed by the Status of Forces Agreement (SOFA) or other agreements between the U.S. and host nation.

Service of U.S. state court paperwork is complicated without the respondent's coooperation, and the military will not serve a member against his/her will. Service of process on a soldier in the Army stationed overseas is governed by 32 C.F.R. § 516.12(c), which states:

"Process of state courts. If a DA official receives a request to serve state court process on a person overseas, he will determine if the individual wishes to accept service voluntarily. Individuals will be permitted to seek counsel. If the person will not accept service voluntarily, the party requesting service will be notified and advised to follow procedures prescribed by the law of the foreign country concerned. (See, for example, The Hague Convention, reprinted in 28 USCA Federal Rules of Civil Procedure, following Rule 4)."

There are a lot of Hague Conventions, but this particular reference is to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. U.S. consular officials are normally prohibited from assisting in overseas service of process. 22 C.F.R. § 92.85.

For information on service in a particular country, the U.S. Department of State has a helpful web page with a country-by-country index detailing service (and, if applicable, translation) requirements. In short, the process is laborious, costly, and takes months.

Personal Jurisdiction over Military Members

Personal jurisdiction is power over the parties to the case. Without personal jurisdiction, a court has no authority to compel someone to do something. This protects people from being hauled into a court in a place where they have no contacts.

The state court obtains personal jurisdiction over a service member just as it can over a civilian, with either:

  • Service of process within the state of Colorado,
  • The member consented to jurisdiction by filing the petition or by signing a waiver and acceptance of service, or
  • Satisfying the requirements of the state's long-arm statute. The Colorado long-arm statute, C.R.S. 13-1-124(1)(e), provides that Colorado has jurisdiction for child support and maintenance over a person who left the state providing that the petitioner-spouse has maintained continuous matrimonial jurisdiction since then.

Note also that if the service member is a legal resident of Colorado, but stationed in Texas, for example, Colorado courts would have jurisdiction over her wherever she was served.

Finally, note that personal jurisdiction over a military member alone may not be sufficient to give the state divorce court subject-matter jurisdiction to divide the military retirement. See the Jurisdiction to Divide Military Retirement article for more information

What is Subject Matter Jurisdiction?

Subject-matter jurisdiction means simply that the state court has the authority to hear the case. Such jurisdiction is required to prevent “forum shopping” whereby someone who lives in Colorado may simply decide that a Nevada divorce would make more sense.

Before initiating a family law case, the state must have subject-matter jurisdiction over the case. For divorce, legal separation or annulment proceedings, this typically requires that either of the spouses be a legal resident (also known as "domicile" - the two are interchangeable in Colorado) of the state where the action is commencing.

In order for the Colorado court to have subject-matter jurisdiction to grant a dissolution, C.R.S. 14-10-106(1)(A)(I) requires one of the spouses to be domiciled in Colorado for at least 91 days prior to filing for dissolution. Often, that will not be the military member, but subject-matter jurisdiction can be established if the spouse is a Colorado resident.

For civilians, legal residence is usually straightforward - if a person lives in Colorado, she is a Colorado resident. A military spouse may be an exception - in reality, most of the time a spouse will have established some kind of footprint in Colorado sufficient to be treated as a domiciliary, such as getting a driver’s license, a job, living off-post, a bank account, or something. But it is conceivable to have a military spouse who lives on-post and has no meaningful interaction with the local community, never registered to vote, etc, and in such cases the spouse may well not be regarded as a Colorado resident.

With military personnel, the situation is more complicated. They move around (“PCS”) more frequently, but unless the member takes specific steps to establish jurisdiction where he is stationed, the member’s legal residence does not change by being stationed somewhere.

The Colorado Supreme Court has ruled that a service member who is present in Colorado pursuant to military orders, without more, is not a legal resident. Viernes v. District Court, 509 P.2s 306 (Colo. 1973). And subject-matter jurisdiction is NOT waivable - so even if the parties consent, a state cannot hear the case without subject-matter jurisdiction.

This can lead to anomalies. Look at a situation where two soldiers are stationed at Fort Carson, one a resident of California, and the other of Texas. They get married here without problem, but cannot obtain a dissolution here. Strictly speaking, only one of their home states would have subject-matter jurisdiction to grant a divorce. That is, unless one of them has taken any steps to at least establish a bona fide claim to Colorado residence. It’s not that tough - register to vote here, and get a driver’s license. Or complete a DD Form 2058, State of Legal Residence Certificate, which tells DFAS what state's taxes to withhold, and then filing income taxes in Colorado. NOTE - doing this may well subject the military member to state taxes, so consult with either a CPA or a JAG officer on the consequences before changing one’s residence.

Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act states that a military member who relocates solely in compliance with military orders does not lose his/her original domicile for purposes of:

Note that the Servicemembers Civil Relief Act does not explicitly address residence or domicile for purposes of court actions, however, it is likely persuasive on the issue of domicile, particularly in Colorado given the body of case law holding that military personnel need more than physical presence due to military orders to satisfy the residency requirements. For more information on SCRA provisions that do protect military members in family law cases, see the Servicemembers Civil Relief Act article.

Military Spouses Residency Relief Act

In 2009, Congress enacted P.L. 111-97, the Military Spouses Residency Relief Act, which provides military spouses essentially identical rights as service members on the issue of domicile. So for purposes of taxation (10 U.S. Code § 4001(a)(2)) and voting (10 U.S. Code § 4025(b)) reflect that a military spouse moving with a member pursuant to military orders does not lose his/her original state of residence, providing that the spouse and member have the same state of legal residence.

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Carl O. Graham