Military Divorce Attorney Near You

military divorce soldiers at attention stewart law groupWhat is military divorce? In the state of Arizona, Military divorce describes the overlay of law and circumstance, something unique to marriages where either spouse is a service member or military retiree. Numerous state and federal laws apply whenever civil court proceedings involve members of the U.S. Armed Forces. Be sure to read this article in its entirety if you, your spouse, or the other parent is or was in the U.S. Army, Air Force, Coast Guard, Marine Corps, Navy, National Guard, Reserves, National Oceanic and Atmospheric Administration (NOAA), or Public Health Service (PHS).

Every military divorce will have its challenges, whether filed in Arizona or some other jurisdiction. Contested or uncontested, the divorce process can be stressful and very emotional. Preparing for court proceedings, obtaining legal representation, having a legal strategy, knowing your rights and responsibilities, these will all go a long way toward obtaining the best possible results in your military divorce.

Filing for a Military Divorce in Arizona

Where your case is filed does matter in a military divorce. The filing state’s laws control child custody and child support, spousal maintenance, and property division. On the latter, divorce requires distributing all marital property between the spouses, not just that which is located within the state where the case is filed. The process of dividing property in military divorce is often complicated by the value, location, and nature of what is being divided. Say, for example, the divorce is filed in North Carolina with the military spouse stationed at Fort Bragg – marital assets and debts are divided according to equitable distribution law. By contrast, a divorce filed in Arizona with the military spouse stationed at Fort Huachuca means community property law applies and division is approximately equal. Before filing for divorce in Arizona, jurisdiction should be established. Where to file your military divorce depends upon where spouses reside or are stationed.

There are three possibilities:

Arizona Military Divorce LawyerThe service member’s state of residence. The military spouse’s state of legal residency (or domicile) is the place he or she intends to return to when discharged from service or upon retirement.

• Where the service member is stationed. For either spouse to file in Arizona, one must be a permanent Arizona resident or been domiciled here for at least 90 days. When a service member is stationed in Arizona, military presence for 90 days in this state should satisfy jurisdiction. ARS § 25-312.

• If living in different states, then file where the civilian spouse resides. Military families are often separated by substantial distances for extended periods. For example, a civilian spouse may reside in Arizona while the military spouse is stationed at Fort Bragg, North Carolina (claiming Ohio for purposes of legal residency). Typically, when the civilian spouse lives in one state and the service member in another, divorce is filed where the civilian lives. When jurisdiction is proper in Arizona, the petition for dissolution of marriage is filed with the Clerk of the Superior Court in Maricopa County or another county. Visit the discussion about basic court procedures and navigating Arizona divorce.

Competing Divorce Petitions

If the servicemember spouse filed for divorce in another state and the civilian-respondent was served in Arizona, can the civilian spouse file for divorce in Arizona after having been served already? Yes. The jurisdictional rules for Arizona require a party to have lived in the state for 90 consecutive days and any minor child to have lived in the state for six consecutive months. The rules for military members getting divorced can be different, though. A service member can typically file in his or her state of domicile even when that is not the place where the service member has lived recently. ARS § 25-312(1). A service member need not be stationed at Luke Air Force Base, Marine Corps Air Station Yuma, David Monthan Air Force Base, Camp Navajo Army Base, or Fort Huachuca Army Base for a military divorce to be filed in Arizona. Stewart Law Group provides representation in family law and divorce cases filed in Arizona where clients are stationed here, in other states, or outside the U.S. or overseas.    

Challenges of Service of Process in Military Divorce

If the civilian spouse files for divorce in Arizona, then the military spouse must be personally served with the summons and petition. When the service member is deployed in a war zone or overseas, personal service can be very difficult. With the service member on base or aboard ship, military regulations must also be complied with. A private process server cannot simply come aboard to serve a sailor with the summons and complaint! Furthermore, if a service member is stationed in a foreign country, then personal service must satisfy that country’s laws. Foreign service of process must be performed in a manner that complies with the Hague Convention or controlling international treaty. An experienced military divorce attorney will determine how service of process must be completed.

Military Divorce and SCRA

Divorce Lawyer for US Military Stationed AbroadDistance and military duty can interrupt and interfere with settlement negotiations and court proceedings. That is precisely why the Servicemembers Civil Relief Act (SCRA) protects the rights of active duty service members who, because of their assignments, are prevented from fully and fairly participating in a pending divorce or other civil lawsuits. 50 USC §§ 3901, et seq. The SCRA protects active duty military who have been served with process in a divorce, bankruptcy, mortgage foreclosure, or other civil lawsuits. Civil and administrative proceedings can be suspended for active duty Army, Navy, Air Force, Marine Corps, Coast Guard, and certain activated service members in the National Guard, NOAA, and Public Health Service. The SCRA stay ensures service members focus on military duties knowing they will have the opportunity to appear, advocate, and defend themselves in the lawsuit later when their assignments allow. When uncertain whether provisions of the SCRA or an exception to the general rule might apply in your case, consult an experienced military divorce lawyer about your specific circumstances.

Importantly, the SCRA protects the service member from a default judgment in divorce proceedings. Without the SCRA, an Arizona court’s default judgment may be entered against the respondent in two situations:

  • When the respondent signed an Acceptance of Service, but did not file an answer
  • When the respondent was served the summons and divorce papers according to law, but did not plead, appear, answer, or in any way defend himself or herself in court.

Under the SCRA, a military spouse may avoid default divorce by requesting the proceedings be suspended for up to 90 days after leaving active service. This is to give the service member additional time to respond to the divorce petition and prepare for trial. What if the service member fails to invoke the SCRA? Before the Arizona judge will enter a default judgment, the petitioner must file an affidavit of military service regarding the respondent’s active duty status. This affidavit is a sworn statement that, to the best of the affiant-petitioner s knowledge and belief, the respondent either is or is not on military active duty or, in the alternative, petitioner is unable to determine the respondent-spouse’s military status. When spouses separate and do not communicate, for example, the petitioner may be left in the dark regarding the other spouse’s deployment. There is a criminal fine and imprisonment upon conviction of making a false affidavit of military service to obtain a default judgment of divorce. See 50 U.S.C. App. § 521(c). To get proceedings suspended under the SCRA, the service member must provide a statement that military duty prevents participation and appearance in court, including a date when he or she will be available. Alternatively, the Commander may provide a similar statement with language to the effect that leave is not authorized. Depending upon how long the military spouse is deployed, provisions in the SCRA can delay lawsuits for over a year. Be mindful that proceedings can be suspended, but not canceled.

Service Member’s Status Unknown

What happens if the respondent-spouse’s military status cannot be determined? The court has options under the SCRA. For one, the judge could require that petitioner file bond to indemnify the respondent against loss or damage resulting from the default judgment. If the defendant is known to be on active duty, then the judge should withhold entry of a default decree of divorce until after an attorney is appointed to represent the service member in absentia. Additionally, a default judgment could be reopened by the court under certain circumstances. The service member may apply to the court to reopen the case when:

  • The judgment was against the service member or the judgment was entered within 60 days after the military service ended
  • The service member’s defense was prejudiced because of military service
  • The service member shows the defense he or she would offer has merit. Reopening the default judgment to allow the service member a fair opportunity to present a meritorious defense is an important SCRA protection.

Was a default judgment entered against you? An attorney with Stewart Law Group can review your options.

Arizona Child Custody in Military Divorce

With child custody in Arizona, the court must determine legal decision-making and parenting time in the best interests of the child. A parenting plan is required and would include a parenting time schedule with virtual visitation for the deployed service member. Be mindful that an SCRA stay could delay child custody proceedings, although it may not prevent the civilian parent from obtaining temporary custody in the interim. If you have minor children, then read our child custody articles on parenting plans and the role of mediators, child custody evaluators, and parenting coordinators in these cases. We also offer valuable information about the required parent education program class, what it takes to modify child custody after divorce, visitation rights of grandparents and third parties, and other essentials. Contested child custody proceedings are possible with any divorce. Heightened emotions can make it difficult for parents to negotiate the details of a parenting plan. In military divorce cases, custody proceedings may also expand under the Hague Convention and Arizona’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The U.S. is a member of the Hague Convention which controls many inter-country domestic relations matters. Among other things, the Hague Convention controls international recognition of divorce and legal separation, child custody, parent abduction of a child, recovery of child support, and service of process. The jurisdictional laws implicated in military divorce are sometimes difficult for parents, attorneys, and judges alike to interpret. Establishing Arizona as the child’s home state under the UCCJEA and dealing with international child custody orders issued by foreign governments are two examples of why that is so. With service members relocating frequently, asserting home state jurisdiction over the child may be difficult. In some instances, the other parent has left Arizona with the child and moved to a different state while the service member was deployed. The question then becomes one of whether the Arizona court has authority to enter child custody orders. The UCCJEA offers four ways for the Arizona court to establish jurisdiction over a child custody matter, as discussed in Child Custody and the UCCJEA. When a child is present in Arizona, the court could exercise emergency jurisdiction and enter temporary emergency custody orders even if there is a divorce pending in another state. Under the UCCJEA, emergency jurisdiction can only be invoked when the child is present in the state and has been abandoned, among other possibilities. However, abandonment does not include a military parent’s decision to leave his or her child in the care of a new spouse, grandparent, or another caretaker who is not the child’s other parent.

When are military duties incompatible with parenting duties?

Many service members train in the field for extended periods or are deployed overseas often enough to have no real ability to maintain a parenting schedule. The question for these military parents is whether they really want to devote resources to obtaining equal parenting time and joint legal decision-making knowing there will be no continuity to their parenting. The court considers a parent’s ability to provide a stable home for the child. The service member should carefully consider what custody orders are reasonable, even possible, when active duty and deployment are controlling circumstances. This is an important discussion to have with an experienced military divorce attorney. What can parents do to arrange temporary custody during deployment? One option is filing consent orders transferring custody prior to deployment. Before the service member mobilizes, seek a consent order transferring custody to the civilian parent for the duration of deployment. Even when divorce is pending, this can be the better option for the child. The order is based on an agreement between the parties to transfer custody to the other parent before mobilization and transfer custody back after mobilization ends. When the service member returns, the child is immediately returned to him or her. The consent order would include a description of the deployment circumstances necessitating the custody transfer and a date when the service member expects to return. So this does not inadvertently become a permanent custody transfer, discuss it with an attorney.

Military Family Support

Family support in divorce means spousal maintenance and child support orders. Spousal maintenance may be requested by either party. The spouses can agree to an amount of financial support and include terms in their separation agreement or, if spousal support is contested, the issue may proceed to trial. With the passage of the Uniformed Services Former Spouses’ Protection Act (USFSPA), a federal statute, spousal maintenance awards in military divorce are more restrictive. Special rules apply. Before moving on to child support, a few words about health insurance coverage for a former spouse or child. If a service member is insured through an employer but is now active duty military, the employer’s health care coverage may be continued for up to 18 months by continuing to pay the insurance premiums. Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), anyone covered under the health insurance plan, including a spouse, may make the premium payments to continue coverage. That is so, even if the service member decides not to continue paying premiums for self-coverage. Additionally, an 18-month extension is possible with certain qualifying events for a maximum continuation coverage period of 36 months.

Calculating Child Support

In all family law cases, child support orders go hand-in-hand with child custody determinations. Every parent has a duty to support his or her natural or adopted child living in Arizona or elsewhere when not emancipated. ARS § 25-501. Sometimes child support requires paternity establishment proceedings with DNA testing. Always look to the Arizona Child Support Guidelines to begin calculating child support. With minor children of service members, there are additional support issues to consider, such as:

  • What service pay is included as gross income when calculating child support? Free on-base housing may be counted as income if it significantly reduces the service member’s personal living expenses. Patterson v. Patterson (Ariz. Ct. App. Feb. 10, 2011). One-time military bonus pay and locality adjustment pay may also be included in a service member’s gross income for child support purposes.
  • What are the impact on parenting time and child support obligations when the parent is deployed?
  • How is child support determined for a child residing overseas with the other parent? When ready to start working on child support obligations, input the parents’ income data, number of children in the home, and parenting time schedules using our FREE Child Support Calculator (or download the app to your smartphone). Strive for an arrangement that is in your child’s best interests and satisfies mandatory Guidelines. This is a good place to begin negotiating parenting time, too, and will help you develop a custody strategy with your attorney.

Enforcing Child Support and Spousal Support Obligations

If family support for a spouse or child is not paid, then the dependent spouse may complain directly to the service member’s Commander. Straightforward and inexpensive, this approach may be sufficient to get payments flowing again. Why? Because the service member who fails to support a family violates military regulations – the Commander enforces regulation compliance. A service member may be reprimanded (a permanent stain on his or her service record), have pay forfeited, or be criminally sanctioned for noncompliance with military regulations. The Commander may schedule support payments going forward, prospectively, from the date the complaint was received, but cannot enforce support arrearages. The military spouse may request the Commander relieve him or her from the obligation to provide interim spousal support. Relief is typically based on allegations:

  • The service member was the victim of domestic violence by the other spouse.
  • The other spouse’s gross monthly income exceeded the service member’s.
  • The other spouse received the requisite support from the service member for a long time.
  • The other spouse received additional payments from the service member, such that the Commander credits the service member for regular and recurring payments (for example, car payments and home mortgage payments) already maintaining the other spouse.
  • The spouses have lived separately and apart for a year or longer.

Garnishment and Involuntary Allotment of Service Member’s Pay

If there is an order for spousal maintenance and the obligor is the service member, then the order may be enforced through garnishment and involuntary allotment when necessary. The same is true with court-ordered child support. The service member’s pay cannot be garnished by the Defense Finance and Accounting Service (DFAS) without a court withholding order that directs collection of support and any arrearage. Thus, the better approach is to seek orders for child support and spousal maintenance even if only temporary. With those support orders, DFAS can begin garnishing the service member’s pay with involuntary allotment used to collect arrearages. Involuntary allotment allows DFAS to withhold funds to pay past due support from a service member’s disposable pay and housing allowance. Provide DFAS with the support order and evidence of at least two months arrears. When a veteran receives military retirement pay and waives part in exchange for VA disability, those VA disability payments may be garnished to satisfy child support obligations. (The story is quite different with spousal support, or alimony. Check-out our discussion on spousal maintenance in military divorce.) If a service member fails to pay court-ordered child support, then he or she may have engaged in “conduct of a nature to bring discredit upon the armed forces.” This is a punishable offense under Article 134 of the Uniform Code of Military Justice (UCMJ). Is the obligor-parent an officer? Failure to pay court-ordered child support may be “conduct unbecoming an officer and a gentleman” resulting in court martial. UCMJ Article 133. By contrast, enforcement of court-ordered child support in state court could mean being held in contempt of court, fines, and jail time. If the service member violated an order to pay spousal maintenance, then an enforcement action could result in both contempt and a judgment allowing the supported spouse as judgment creditor to execute on the judgment and collect money from the debtor’s non-exempt pay, accounts, and so on. Will the SCRA suspend criminal prosecution for non-payment of child support? One exception to the SCRA worth noting here relates to unpaid child support. Although the SCRA stays certain civil proceedings, it does not protect the service member from criminal prosecution, or criminal contempt, for nonpayment of child support. For collection of child support, as well as child support arrears, service of process is made somewhat easier for the other parent. There are uniformed military officials assigned to assist the other parent with personal service on a service member whenever child support payment is the legal issue.

What You Should Know About Military Divorce 

Go To: Video Transcription

Property Division in Military Divorce

Because service members relocate often, they may have marital assets in states other than Arizona. In general, Arizona considers out-of-state assets that would be categorized as community property if located within the State of Arizona as marital property to be divided. Similarly, the separate assets of one spouse located in some other jurisdiction would remain separate property. ARS § 25-213.

Dividing Military Pensions

One important aspect of property division involves military pensions and retired pay. Because dividing retirement assets and related benefits in a military divorce can be complicated, we discuss the process in a special military pension division segment. Read more about military divorce here: Military Divorce FAQs. As well as a section on Life insurance ramifications involved in Military divorces.

 

Read our customer testimonials:

“My attorney, Christa Banfield, was more knowledgeable and responsive than I ever imagined a lawyer would be. The divorce process is a long, complicated, nerve-racking endeavor where you can feel that the law isn’t fair and that you might lose everything, but Christa remained a confident, calming influence throughout the entire process. From my initial consultation to the final decree, I was sure that Christa had my interests protected. She is intelligent, honest and straightforward in her advice; exactly what you need a lawyer to be. She astutely informed me about my options and guided me through tough times where I focused more on emotion than logic. I suppose no one ever really “wins” in a divorce, but I am completely satisfied with Christa’s representation and recommend her highly to anyone going through this difficult process.”

Rating: 5/5 ⭐⭐⭐⭐⭐
Robert Collison
January 2019
Read more of our reviews on Google!

Contact Stewart Law Group

There is much to know about the divorce laws that apply to service members and their spouses in Arizona. We know you will find the information on our website helpful. But by all means feel free to contact us at 602-548-3400 or email info@arizonalawgroup.com. You could also post your question anonymously to our free Ask a Lawyer service and a family law attorney will respond.

Avvo Reviews 5/5 rating based on 9 reviews.

Video Transcription:

Hi, this is Erica Merrill, and I’m the founder of Perfect Legal Video, and I am very excited to bring to you today attorney Fred Rotolo. And he is an attorney with the Stewart Law Group. They are out of Phoenix, Arizona, and they specialize in family law.

And today, we are going to be talking about a very interesting topic and one that I don’t talk about too often. But I do have a personal case of this in my own family, and that is the military divorce.

And I am so excited to talk to you today, Fred, about this. So welcome to the show today. Fred, thank you so much for joining us.

Thank you for having me.

You are welcome. So what I am told is that in your past, you were in the military and in fact, the National Guard. Can you tell us a little bit of that? Is that why you decided to specialize in this type of law?

Yeah, my time with the military with the National Guard shortly was cut short for law school. And then having left law school, I fell on to family law. And then with the little military background, it did attract clients who were in the military, also being in the Phoenix area. We do have a large air force base here, Luke Air Force Base. So there were service members who looked for people who had military experience.

Well, it makes a lot of sense to have someone with military experience, I know that if you go to an attorney that does not specialize. There are going to be several points that we are going to touch on today that they may not know a lot about.

And having an attorney that’s guessing at certain topics and situations could cost you a lot of money for the rest of your life. Would you agree with that?

Yes.

And we’ll talk about this later as we go through it.

But usually that area of concern is with the military retirement on military retirement. I like to say it is full of minefields. So it is better having an attorney that is more familiar with military marriages, military divorces, military assets than an attorney that doesn’t have that experience.

That is so true. And like I said, I definitely have that personal experience within my family with with that and it gets ugly. But let’s go into a few other differences between a military divorce and a civilian divorce.

Good. Good question, and we touched on that already by mentioning retirement. I think the biggest difference between a military divorce and a civilian divorce is going to be that retirement asset of the military is one of the few occupations that’s still having what I call an old-fashioned pension.

You know, a lot of people a little older than me will remember the old, you know, old railroad pensions or the steel fuel factory pensions. Those are pretty much all long gone. But the federal government, military still has a pension.

And that’s what is one of the bigger differences than a civilian marriage. So when dealing with that pension, there are some unique aspects of it. First, a lot of people will say, oh, I’ve heard about this 10 10 rule.

You know, I wasn’t married to the military spouse for more than 10 years, so I don’t get anything from his military pension. Is that true? No, that’s not true. And sadly, I have heard some people say that. And again, they’ll come and say, oh, I’ve heard about this 10 10 rule.

Well, what’s that is? It simply means that if you’ve been married to the military spouse for less than 10 years and that military spouse has had less than 10 years of service, then all that means is that facto, the Defense Finance Accounting Service, that DFAS is not going to be processing that non-military spouses share of the retirement. OK, but less than 10 years of service, less than 10 years of marriage. The nonmilitary spouse is still entitled to that share of retirement that was accumulated during marriage. It’s just the military spouse is going to have to make direct payments to that non-military spouse.

And on the road, you talking about payments, when do these payments happen?

Well, that military service spouse has to retire and upon retirement, then the calculation is done to determine the exact amount that the non-military spouse is getting. So a non-military spouse might have divorced somebody at, say, 15 years into the marriage, and then that military ex-spouse has five years left of active duty. So it’s after those five years and after that military spouse retires, then the non-military spouse is going to start collecting.

In that, that’s similar to a civilian pension as well, but the 10 10 rule tends to be a big difference. Also, there’s notice requirements that need to be made by the non-military spouse upon the divorce taking place.

And sadly, some of those notices to DFAS aren’t made, the nonmilitary spouse can even be excluded or lose their right to the military retirement. Another interesting aspect of the military retirement that we tend not to see with civilian retirement pensions is when a military person separates from the military.

They’re going to be given some sort of disability rating. It’s probably very rare to leave the military without any disability rating. Well, the disability, you know, those years of service could be converted into disability. How does that affect the pension?

You know, is that disability payment now entitled or is the married, I’m sorry, the non-military spouse now entitled to what is now being converted to disability. And the law on that belief has changed over time where the non-military spouse was entitled.

Then the nonmilitary spouse was not entitled. So that is another issue that needs to be addressed in the military divorce. Well, it sounds like there’s some myths that we’re busting here today when it comes to the 10 10 rule. And you know what people feel like they are entitled to. And it sounds like there is that land mine with hey is some of that pension turning into disability? And I mean, have you seen some non-military spouses collect the disability because it is an income?

The status of that now is it’s not collectible, so the nonmilitary spouse will not receive that disability portion. How do they change that with all of the divorces that have already finished or are all the people that have that in their agreement?

Is that grandfathered in the law changed so long ago that any to any divorce currently is not going to have conflict with that? It’s going to be that that disability portion is not subject to a poor allocation to the non-military spouse.

And that’s really a loophole that you can’t do anything about as the nonmilitary spouse. Is that correct?

That’s correct. There is one area where there is up to the discretion of the parties, and that would be the survivor benefit.

So when the participating spouse of the military serving spouse has his pension, he’s going to designate a survivor. So if he passes away, what survivor is going to continue to receive the military pension? Well, if somebody is only married 11 years or so and they’re still young, does that military spouse want to keep his ex that his or her ex-spouse has the survivor? Maybe not. Plus, there’s a cost to the participating spouse, the military service spouse. There’s a cost to have that survivor benefit allocated. So even if the military spouses I want my ex-wife to remain or spouse, I want my ex-spouse to remain as the survivor.

Then there’s an issue who’s paying for that survivor benefit? And sometimes the military spouse will, sometimes the surviving spouse will. Or sometimes we do a ratio, maybe 50, 50, or maybe some other ratio in all these things need to be negotiated.

And that’s why having an experienced attorney who’s familiar with this stuff tends to help.

Wow. That sounds very, very complicated. You know you said something really interesting the other day when we were talking about the pensions and why they are split, especially in the military with the non-military spouse.

And I think you said something like, look, they’ve been following them around throughout their career and they haven’t been able to build their own career with their own retirement. I mean, is that I don’t want to misquote you on that, though.

That’s a great point. And in essence, you hit the nail on the head on the concept of divorce law in general. I practice in Arizona. Arizona is one of the nine what we call community property states. And a community property state is whatever is accumulated during the marriage should be divided or allocated as equally as possible. The law says equitably, but that’s translated pretty much equally. And again, is community property concept follows this concept of common sense. What you said, if one spouse is a stay-at-home spouse and the other spouse is accumulating wealth, God forbid, in case of a divorce, why should that stay-at-home spouse be excluded from the assets that were earned during the marriage? And that is the whole concept of equitably allocating assets. And that answers the question, why is this nonparticipating spouse getting 50 percent of the service member’s retirement? And I should be careful when I say 50 percent.

I don’t want to scare anybody who’s been in service for 19 years and only married for five years. When I say 50 percent, I mean 50 percent of what was accumulated during marriage. So years, years of service, pre-marriage, years of service after the divorce are not counted. They’re not allocated to the non-serving spouse. It’s just the years of marriage.

Well, that’s good to know. You’re right. I mean, this is so complicated. I would never suggest to anyone that they could do their own divorce anyway, like if they’re just regular old civilian divorce. But when it comes to military, it can be so different. And, you know, do you see this changing within states? Do the laws that pertain to a military divorce change within states, or is it the same across the board because it’s one organization?

Excellent question. If the latter what you said, it’s one organization. Obviously, the military pension is governed by federal law. So the state law isn’t going to step on the toes of federal law. In fact, unrelated to pension, but since you brought up federal law and this goes to spousal maintenance or alimony in Arizona, they call it spousal maintenance. It’s alimony if a service member receives VA Disability. And then the spouse wants to calculate alimony, which is heavily dependent on how much the person makes, the person that’s going to pay alimony. How much does that person make?

That’s going to heavily influence the alimony amount. But that VA disability by federal law is not allowed to be included in that person’s income. So let’s say a person gets another thousand dollars a month in VA disability when a family law judge calculates alimony, that family law judge is not allowed to look at that extra thousand dollars a month. And that’s dictated by federal law.

Well, that’s very interesting. Do you see this in military divorces where perhaps the military person is earning money under the table and you have to try to figure that out, too, calculated it?

And I mean, there’s a lot of hidden assets, a case. Well, I mean, I say a lot, but occasionally there are hidden assets that people don’t know what their assets are when they are getting a divorce.

Do you find this to be the case with the military divorce or is everything just pretty much above board?

That is an excellent question. In fact, that might be one of the advantages or one of the easier parts of a military divorce, because it is so much harder to do moonlighting in the military. And plus, your military pay is all public information, right. Anybody could go online and see what any three makes or in 03 makes. And then all the extra benefits, the housing allowances, the hazard, you know, the hazardous duty pays, et cetera, et cetera. All of this is all public information. So it’s hard for the military service member to be hiding assets. You’re going to see that more in a civilian divorce. And what where you’re going to definitely see that is when the income when one of the spouses works for themselves.

And yes, there’s that the not the other spouse is always convinced that we’re leaving something on the table. They must be leaving something on the table. And when somebody works for themselves, even with them being 100 percent honest and no malicious intent, it’s still hard to track what they’ve got, you know, because they’re telling the IRS. Legally, they’re telling they’re on the IRS. Well, this is my income, but they’re allowed to take things like depreciation and expenses if they work for themselves. They’re not lying. That’s their legal federal income to report to the federal government.

But the divorce court says, hey, we’re not going to allow you to take depreciation of some assets when we as the divorce court calculate your income. So even without any ill will, without even an intention to hide assets, you’re still going to have two different incomes, one income that’s legally allowed for the IRS in one income that the divorce court’s going to take into account. And you’ll see to your question, we see less of that with a military divorce because the soldiers, sailors serviceperson just simply doesn’t have that opportunity to do you have those other career opportunities while they’re active duty.

That is so true. And if you are self-employed, you can almost fix what you make depending on if you have employees or not. So you just pay yourself less. You can pay more employees, and then it looks like you are not as profitable during that period of time.

Of course, they do go back a few years to try to make sure that you have like an honest income. But it just depends on how long that person was planning to leave. So you’re right. It does get more complicated with the civilian divorces when it comes to those that you know, what you’re making and sometimes your assets. But the other very, very tricky piece to the military divorce is what happens with the kids and with custody, especially with deployments.

So I can’t wait to hear, you know, what you have to say about this. I have a friend who was going to go to Germany and she decided not to follow her husband.

Good question. And, you know, we all know that in the military, the military families tend to move through every three years, every four years. There is a lot more movement within the country and around the world with a military family.

Oh, right. We all had friends. We are. We all have friends who say, oh, I’m a military brat. You know, I went to 13 different schools.

Right. So, yes, when when the family is intact, that’s that’s not a problem. It might be a problem to move around that much, but that might not be a problem. But when you’re divorced, what happens? So let’s use an example here. I’m in Arizona. We have Luke Air Force Base. Let’s say we have a married couple with a child and they live in the Luke Air Force Base area. Everything’s fine. They’re divorced. They get an equal parenting plan, 50 50. You know, the father and mother have the child 50 percent of the year.

Now, the servicemember spouse is sent to another state, another duty station or sent out of the country. What happens is the service members are going to say, well, I want the child to follow me to my next duty station and then the others, the nonmilitary spouse, because they are I don’t think so.

I want the child to stay here in the Phoenix area. Well, that’s going to be the same issues at a civilian is going to happen because ex-spouses, one of them might remarry in that new spouse, have a transfer to another state workwise, or that divorced spouse wants to move to another state on their own and take the child. So the relocation issue in and of itself is not unique to military because civilians move to after divorces. And there is state law that the judge follows to help the judge determine, am I going to let this child move with the other spouse or am I going to keep the child here?

So in a military context, you’re still going to have that same state law apply. The only difference is, is, you know, for the spouse who says, no, I want the child to stay here in Phoenix. What are they going to argue?

They’re going to argue, hey, judge. The other parent is in the military. We know the other parent is going to move every three or four years. And let’s see, I agree that the child can move with the service member to Georgia.

OK. And then what happens? Now the child’s in Georgia. Then that service member gets sent, say, to Korea where children are usually are not allowed to follow the service member or, you know, part of a hard duty state, a hardship post.

So now the child. Well, we, my parents let me move to Georgia. But now my parent is moving to Korea. Now, where am I going to go? Am I going to stay in Georgia or am I going to go back to Phoenix? So those issues are unique to military families. But in general, the whole issue of relocation is very similar to a civilian family, just the frequency that is the issue. In general, they want to keep things as stable as possible for the child.

And if you’re going to be moving around, you know, with a single parent and like you said, they could end up somewhere that the kid isn’t even allowed to go to eventually. That can be problematic for a child and their development.

So I can see where that would be something to look out for. So for someone that’s having a little trouble in their marriage and they know that their next post is going to be overseas, you know, would you recommend that they stay behind and not bring the children overseas to where now the kids could get stuck in another country and not be allowed back in the states for a while while they’re working out the divorce and divorces can take years sometimes.

Correct. That’s a very good point. If the military spouse is anticipating the divorce, I think that military spouse is going to want to move the whole family to Germany or wherever or Italy, wherever, because now they’re together. It’s good. And they have a little bargaining power when the divorce happens. But you’re right. Let’s flip that. Let’s say it’s the nonmilitary spouse that is anticipating the divorce.

I think it would be wise for that nonmilitary spouse to say, hey, I’m going to stay. I’m going to stay here with the child while you go to your new duty station. And that that’s going to make it a lot easier for that spouse with the custody issues and just even the logistics of the divorce, because they’re here. They’re in their home city. That’s true. And, you know, I know that the friend of mine, she ended up meeting another military person. She was still living at that base and just surrounded by military men.

Now she’s going to be moving again. But, you know, the other her spouse retired and is back here. And so it’s like all these decisions were made. But he’s back here and they’re going to be moving around a bit now.

So it’s just interesting how it works out when you’re in the military and marriages and divorces and that moving piece is really, really tricky sometimes. Correct. Correct. And again, as we’ve touched on earlier, even civilians will have that relocation issue.

And the war is the same. It’s just it’s not to the frequency that military families are going to have. And even in the healthiest of marriages, you pointed out that moving around is stressful. I think I think when they’re in their retirement, they look back, they look fondly, that they had an opportunity to live all over the world or all over the United States at no expense to them financially at the military’s expense. Move them around. But, yes, when you’re a young parent with a seven-year-old or something and you have to change schools again in New City, new friends, it is stressful even in the healthiest of marriages. Now, have those same problems in a marriage that isn’t as healthy. And in the military life is so stressful on marriages, even in the best of situations. So so they have extra stresses that civilians don’t have. It’s totally true.

But you know, what is it you’re right, it happens civilian wise. My ex just moved a couple towns away, and he wants our daughter to change schools because the school system is just a little bit better than here.

And we moved here for this school system. So like now we’re not making one more change. It’s it definitely can happen everywhere. But, you know, it is even trickier when they’re they’re moving to other countries and across the country.

And so we’ve talked about some great topics today. It’s a complicated topic. And we’ve busted a few myths that people have when they are regarding military divorce. Is there anything that we missed because we really had these two major issues to discuss, any last minute advice or stories you’d like to tell?

That’s a very good question. One topic that we didn’t touch on is child support. We’ll see. I see this every now and then in a civilian situation and a military situation. If there’s a child, obviously the parent is entitled to child support.

Let me rephrase that more accurately, that the parent that’s making less money is entitled to child support, even if it’s equal parenting time. The parent that makes less money is entirely up to child support. Obviously, if there’s equal parenting time, the child support is less then than the parent who’s paying child support.

Parent has, you know, less than 50 percent time. And as you pointed out, divorces could go many months. Sadly, many years. So what happens while that divorce is going on? These are called temporary orders. The parent, either parent could go to the court and file what’s called a motion for temporary orders and asks for some temporary child

support to be calculated to be kind of a Band-Aid until the final numbers are calculated, until the final divorce is drawn. And this is called temporary child support. A military parent can do the same thing. Military parents could go to the court and say, we’re in the middle of a divorce I would like some child support calculated. But what the military parent has that the civilian parent doesn’t have is the military on their own can order the service member spouse to start paying support to the nonce service member spouse.

In essence, the chain of command itself is making a temporary order that can be done. Ironically, sometimes that number is lower than what the civilian court would calculate, the regular family court. So before that, I’ll say financially dependent spouse.

So before that financially dependent spouse does go to the chain of command, the powers that be and say, hey, I filed this divorce action, could you have the service member spouse start paying me support before they did that?

They might want to see what the civilian number, for lack of a better word, what the civilian number would be. And that’s usually the better way of doing it, is doing it through the civilian court, the family court. They’re set up to do it. They can calculate it quickly, even though divorces take a long time. We can usually get a temporary orders hearing done pretty quickly so that that is the one other difference that a military parent might have that civilian parents don’t have.

Wow. That is a really interesting point and a great tip. I had no idea that they should go to the civilian court first for the temporary orders. And I do love that you know, the military does try to take care of everyone.

You know, they get involved, like you said, they might just write those orders up and and make sure that if someone’s going to be behind in child support, they might just attach the wages for you. And there’s a lot of things that the military will do to make sure that they have honorable people in their midst that are working for them and that everything stays above board. I mean, do you find that to be true as well? Yes, I agree. I agree. I think as we touched on before, there are so many stressors to a military family.

I think the military does try to make an effort to protect the, you know, the emotional and mental health and physical health of families. I think that’s a very important part of the military. Of course, sometimes there’s issues, but I think they do try.

Well, this has been really interesting, and I absolutely appreciate your time today. It is so rare to hear these facts and these tips about military divorces. And I know that the audience is really going to benefit from listening in to the information that you’ve given us today.

So I want to thank you so much for doing this and coming on the show today. We hope to see you again soon. Thank you. I enjoyed being here. Thank you. You are welcome. And thanks so much to everybody out there listening.

Or if you’re watching the video, we appreciate you. And I hope that you found this very helpful and informative. If you or someone you know is going through a military divorce. We’ll see you again next time. Thank you so much for listening.

 

BBB Avvo AV State Bar of Arizona
As Seen On:
FOX10 azcentral Attorney at Law Scottsdale Progress Law.com LawyersWeekly FBN QuadCities Texas Lawyers