The laws of individual states have historically controlled familial relationships and the rights and responsibilities derived from them. The injection of federal rights into the domestic relations area has generally been confined to resolution of claims that the application of particular state laws violated either due process or equal protection rights of particular persons. In a limited number of cases concerning marital property, however, one party has relied upon a federal law creating a benefit or right that conflicts with the state-created rule apportioning marital property or establishing a support obligation. Such a conflict of laws problem arose in McCarty v. McCarty, 453 U.S. 210 (1981). Richard and Patricia McCarty married in 1957 while Richard was a second year medical student. During Richard's fourth year in medical school, he began active military service. For the nineteen years of the McCartys' marriage, Richard remained in the military, attaining the rank of colonel and serving approximately eighteen of the twenty years needed for retirement pay eligibility.
For the McCartys, as for many other married couples, Richard's retirement benefits were a major portion of the assets accumulated during the marriage. Not surprisingly, when the McCartys divorced in 1976, those benefits became a major feature of the property contest. Under the laws of the California divorce forum, the benefits were community property subject to division upon divorce. Richard McCarty claimed, however, that federal laws creating the military retirement benefits preempted the application of California's community property laws and required that the assets be set aside to him as his separate, indivisible property. The Supreme Court agreed with his contentions. In McCarty, the Court held that the federal law creating military retirement benefits required those benefits to remain the personal entitlement of individual military personnel; the statute mandated that military retirement benefits be classified as the separate property of the military spouse upon divorce.
The McCarty majority adopted an interest analysis method for resolving the choice of law question raised in that case. In so doing, however, the Court demonstrated a number of problems for which theories of governmental interest analysis have been criticized. This article will focus upon the problems raised by McCarty as a conflicts case. The first section of the article briefly discusses the application of interest analysis to vertical choice of law problems. The second section traces the Court's prior cases and establishes the Court's use of interest analysis methodology. Part three discusses recent preemption cases and explains some of the problems raised by the Court's interest analysis methods. Parts four and five discuss particular problems raised by both the Court's preemption analysis and the legislation overruling McCarty's result.
Louise Graham, State Marital Property Laws and Federally Created Benefits: A Conflict of Laws Analysis, 29 Wayne L. Rev. 1 (1982).