Military law adds to the complexity of the family law field. Additional rules apply if you are going through divorce and you or your spouse is a member of the US Armed Forces. These extra rules can affect how the divorce process begins and proceeds, and what its outcomes will be. Take a look at these state and federal laws that commonly apply in Arizona military divorce.
Where To File Divorce – Which State Has Jurisdiction?
It is typical for military couples to be living in separate states as one or both of them are stationed in different bases. Where the divorce is filed is important because that state will have jurisdiction on the entire case. The filing state’s own laws will apply to divorce issues such as property division, child custody, and child support.
For example, Arizona is a “community property” state, upholding the view that all assets and debts acquired during marriage are owned by both spouses. This usually means the property is divided 50-50 upon divorce, unless specific circumstances dictate otherwise. Not all states distribute property this way, so if you wish to divorce your spouse, you’ll want to weigh carefully the rules of various states in which you may file your divorce petition.
Further, you’ll need to satisfy the residency requirements of any state before you can file your divorce petition there. In Arizona, we have the domicile requirement: you or your spouse must have been “domiciled” in Arizona for at least 90 days – meaning, either of you must have taken legitimate action indicating that Arizona is your primary residence. For example, you must have registered to vote in the state or obtained an Arizona driver’s license.
What if you don’t live in Arizona but your spouse is stationed here? Normally, the servicemember’s presence in the state for 90 days can satisfy jurisdiction. In that case, you have the option to file your divorce here.
Divorce Service – Responsibilities Of Petitioner
Just like in a civilian divorce, a military divorce cannot proceed unless the other spouse (respondent) is properly served the divorce notice and summons. If you are the one seeking divorce (petitioner), you must anticipate unique challenges in serving an active-duty military spouse. They may be deployed in a warzone or stationed in a foreign country, for example.
Arizona gives you only 120 days to successfully serve your divorce papers, starting from your filing date. Past this period, your petition will likely be dismissed and you will have to start over.
If you have properly served the papers but your spouse has failed to respond, it is your task as the petitioner to prove to the court whether or not your spouse is in active military service. This is needed because the court gives more time for servicemembers who are on active duty (discussed more in the next section).
To tell the court about your spouse’s duty status – or to declare that you do not know about your spouse’s military status – you must file a military affidavit (sometimes called a nonmilitary affidavit). Be honest when filing this affidavit as it is a sworn statement; a false affidavit can lead to criminal fines and imprisonment.
Responding To Divorce As A Military Spouse
On the other hand, if you are an active-duty servicemember and have just been served divorce papers, you don’t have to worry about coming home right away to deal with the case. The Servicemembers Civil Relief Act (SCRA) gives you certain protections from unfair divorce proceedings while you are on active duty.
One of the SCRA benefits is that the court will not “default” the divorce just because you failed to respond to your spouse’s petition. Civilian spouses normally have 20 days to respond to divorce papers, but as an active-duty servicemember, you can request for the proceedings to be postponed for the entirety of your duty plus a maximum of 60 days afterwards. This ensures that you will be available to participate and advocate for yourself during the divorce proceedings.
Will a Military Pension Be Divided In an Arizona Divorce?
Yes. Since Arizona follows community property rules, a fraction of military retirement benefits may be divided upon divorce. This rule is supported by the Uniform Services Former Spouse’s Protection Act (USFSPA), which gives each state the right to treat military pension as marital property.
You may have heard of the “10/10 rule,” which supposedly states that in order for military pension to be divided as marital property, the marriage must have lasted at least ten years, during which the military spouse had at least ten years of active duty. This is a common misconception.
While the 10/10 rule does exist, it does not affect the division of military retirement benefits. Arizona will still distribute these retirement benefits regardless of length of marriage or length of duty.
What the 10/10 rule affects is how the benefits will be delivered. If the divorced couple satisfies the 10/10 rule, the Defense Finance and Accounting Service will divide the community property and automatically send separate checks to the ex-spouses. If the couple does not satisfy the 10/10 test, the monthly retirement checks will be delivered to the military member in full, and they will be responsible for sending their ex-spouse’s share.
Alimony And Child Support In Arizona Military Divorce
In Arizona, determining spousal maintenance (formerly called alimony) in a military divorce follows the same rules as civilian divorce. Likewise, calculating child support follows the same Arizona Child Support Guidelines for civilian families.
However, spousal maintenance and child support obligations cannot exceed 60 percent of the servicemember’s pay and allowances.
There is also an additional method for enforcing the spousal support or child support obligations of a military ex-spouse. If the court has granted you support but your military ex-spouse has not made payments, you can send a written complaint to the servicemember’s commander. The commander may then enforce continued payments from the military member through a number of ways, such as reprimands, forfeiture of pay, pay deductions, or even criminal sanctions.
There are many more matters in a military divorce that requires the in-depth knowledge of an attorney. For example, how is a child custody case handled if one parent is deployed overseas? What are the parenting time rules for an ex-spouse who is put on active duty?
If you have any legal concern at all about your military divorce in Arizona, please don’t hesitate to call Goldman Law at (602) 698-5520. We are experienced divorce lawyers who can help you understand the intricacies of your case, strategizing with you for the smoothest, most favorable divorce possible.