Military divorce in Arizona 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).
Our focus in this discussion is on the needs of service members and their spouses in divorce and child custody proceedings. Other articles on our website pertain to various topics generally applicable to divorce, such as separation agreements, father’s rights, domestic violence, child custody mediation, and much more.
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.
Where your case is filed does matter in 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. (Is a court’s jurisdiction the issue? Talk to an attorney.) Where to file your military divorce depends upon where spouses reside or are stationed.
There are three possibilities:
• File in Arizona if that is the 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.
• File in Arizona if the service member is stationed here 90 days. 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. Do the spouses live in different states? This is not a rare occurrence. 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 other county. Visit the discussion about basic court procedures and navigating Arizona divorce.
What if the military spouse filed for divorce in another state and the civilian-respondent was served in Arizona, currently lives in Arizona, and has been a resident of Arizona for several years? 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.
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.
Distance 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 lawsuit. 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 lawsuit. 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 avoids 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 cancelled.
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 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; and
• The service member’s defense was prejudiced because of military service; and
• 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.
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 other 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? Here is one option. 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.
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 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. Be sure to read our detailed discussion on spousal maintenance under the USFSPA.
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.
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 is 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.
There is a preference with all branches of the military for either court-ordered support or voluntary written support agreements between spouses and parents.
Each branch has family support regulations that service members must comply with. Until permanent orders are entered by the court, temporary financial assistance for spouses and children is immediately available should spouse’s separate or file for divorce – a remedy enforceable through military command.
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.
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.
Is the parent a veteran? When a vet 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.
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.
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.
You need a legal strategy for retirement assets, military pensions, and other benefits partly because the USFSPA can have a profound impact on the division of retired military pay. But there are other benefits to consider as well, including Survivor Benefit Plan annuities, Thrift Savings Plan retirement options, and military disability benefits. Just so you know, a former spouse is prohibited from acquiring any property interest, directly or indirectly, in disability benefits paid to a veteran.
There is much to know about the divorce laws that apply to service members and their spouses. 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 firstname.lastname@example.org. You could also post your question anonymously to our free Ask a Lawyer service and a family law attorney will respond.