McCarty v. McCarty

LOCATION: Dames & Moore

DOCKET NO.: 80-5
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: State appellate court

CITATION: 453 US 210 (1981)
ARGUED: Mar 02, 1981
DECIDED: Jun 26, 1981

Mattaniah Eytan - on behalf of the Appellant
Walter T. Winter - on behalf of the Appellee

Facts of the case


Media for McCarty v. McCarty

Audio Transcription for Oral Argument - March 02, 1981 in McCarty v. McCarty

Warren E. Burger:

We'll hear arguments next in McCarty v. McCarty.

Mr. Eytan, I think you may proceed when you are ready.

Mattaniah Eytan:

Mr. Chief Justice, and may it please the Court:

Richard John McCarty, the husband in a California divorce action, appeals the decision of the California Court of Appeal, First Appellate District; which we've had affirmed a Superior Court determination that the husband's expectancy in receiving Army retired pay should be awarded in part to his ex-spouse.

The Court of Appeal took the position that the Superior Court had properly applied California law... and that's a crucial matter in this entire case... and that having applied California law the expectancy in retired pay was indivisible and then divided the Army retired pay pursuant to established California formula.

The husband contended then and contends now that federal law prohibits such a result, and federal law not only applies but preempts California from making such a determination.

The facts in the case can very briefly be summarized.

The parties were married in Oregon in 1957 and were divorced in California, or at least they were separated in California, in 1976.

When the parties were married the husband was in medical school in Oregon.

He was a domiciliary of Oregon, as was his wife.

In his fourth year of medical school, the husband joined the Army and remained in the Army for the entire period up until the divorce.

After spending one year in Oregon he was transferred by the military to Pennsylvania, the District of Columbia, Texas, Hawaii, California, staying in each place for a number of years.

Before the Superior Court the husband contended that he was an Oregon domiciliary and that California could not apply its quasi-community property regime, which is encompassed in Section 4803 of the California Civil Code.

That's a somewhat unusual provision which provides that property which is acquired by either party to a marriage while domiciled outside of California shall be treated as community property if the party would have been domiciled in California at the time of the acquisition of the property.

Once property is classified as quasi-community property, it then is treated as community property.

The issue before this Court is not the distinctive to community property matters.

The issue comes up in a wide variety of contexts whenever a community property state or another state that under equitable division of property, in the context of a divorce seeks to divide Army retired pay.

Now there is a threshold jurisdictional issue in this case, and by explaining what happened before the lower courts I can deal with that as a preliminary matter.

Before the Superior Court the husband submitted the decision in Hisquierdo v. Hisquierdo of the California Court of Appeals.

That decision was not terribly dissimilar from the decision of this Court in the same case, which came out sometime later.

Warren E. Burger:

Under California law, assume hypothetically that he had been a physician for General Motors or Du Pont all this time and had precisely the same experience.

Ultimately, would his pension be subject to division under the California community property law?

Mattaniah Eytan:


What makes this case so distinctive is that the California Court here improperly assumes that California law applies of its own force.

In your example, Mr. Chief Justice, there should be no question that California law has everything to say and federal law has nothing to say about the matter.

Federal law tells us nothing about the pension rights of someone who works for General Motors.

What we have here, however, is a very major federal interest.

We have here the exercise by the Congress of elaborate legislation pursuant to congressional war power authorities to raise and support armies.

Article I, Section 8, Clause 12.

The Congress has passed legislation which covers in great detail all elements of Army pay, Army retired pay, various annuity programs, and the like.