If you or your spouse is in the military, you may have wondered whether your divorce will be more complicated than others. There are certainly differences to consider, but the same main issues need to be decided:
- Division of property and debt
- Child custody
- Child support
- Spousal maintenance
So, what’s different?
One thing is jurisdiction. In Arizona, civilians can only file for divorce if at least one of the spouses has been domiciled in the state for at least 90 days prior to filing the divorce petition. However, members of the military services don’t have to be officially domiciled here to file; they only have to have been present for 90 days prior to the filing.
That said, military members who claim legal residence in Arizona but are stationed in another state or abroad can still file in Arizona, as long as they have maintained their status for 90 days or longer. And, if the military service member is the one who is filing, they can generally file in either the state where they claim legal residency or the state where they are stationed.
The state where the divorce is filed is the state that will make and enforce the orders for property division, custody, child support and spousal maintenance.
Another aspect of divorce that can be different for military members is that there are some federal laws that apply. Non-military divorces are typically handled under state law.
There may be a required delay. One of the laws that applies to members of the military is the Servicemembers Civil Relief Act, or SCRA. This law protects active-duty service members from civil actions while they are deployed.
If you are on active duty or are within 90 days of your release from active duty and your spouse files for divorce, you can apply for a “stay” (temporary halt) of the proceedings. The stay will be granted at the court’s discretion. This stay can give you crucial time to prepare.
Deployment and parenting time
Under Arizona law, a parent’s absence due to deployment is not sufficient reason to permanently change custody to the non-deployed parent. If a military parent has received notice of a deployment in the near future, and that mobilization would have a material effect on their ability to exercise their parental rights and responsibilities, however, either parent can ask the court for a temporary modification of parental rights and child contact covering the deployment period.
Military entitlements can be divided
Another aspect of military divorce is the division of military pay, entitlements and retirement benefits. Just as your pay, benefits and retirement funds would be divided in an ordinary divorce, they will also be divided in a military divorce.
This is done through the action of a federal law called the Uniform Services Former Spouses Protection Act. Moreover, some military benefits are divided by statute and are not subject to negotiation.
The degree to which your military pay, benefits and retirement will be divided depends in part on the length of your marriage. For example, if you were married for 20 years or more, the service member has performed at least 20 years of creditable service toward retirement, and there was at least a 20-year overlap between the marriage and the military service, the non-military spouse can receive full benefits in divorce, including medical, commissary and exchange privileges.
Spousal maintenance and child support may be enforced
Due to special rules in the military meant to ensure that service members pay their family support obligations, courts may take extra measures to enforce these obligations. This could include wage garnishment, voluntary allotment or involuntary allotment.
If either you or your spouse is in the military and you are considering divorce, you need to work with an attorney who has experience in military divorces.