The process required to divorce in Arizona becomes more complicated when one or both spouses are in the military. In addition to all the aspects of state family law that must be considered, these divorces must also proceed according to federal military regulations. While there are many similarities between civilian and military divorce, you and your spouse should be aware of how military service impacts a divorce.
What Is a Military Divorce?
A military divorce becomes necessary if you or your spouse are an active duty member or veteran of the US Armed Forces and/or associated services.
This includes:
- US Army
- Air Force
- Marine Corps
- Navy
- Coast Guard
- National Guard
- Reserves
- Public Health Services (PHS)
- National Oceanic and Atmospheric Administration (NOAA)
This area of civil law is complex because of how state and federal laws interact. In addition, military divorces often occur after the couple has moved away from their state of residence. Divorce may be possible under various states’ jurisdictions, depending on your family’s circumstances.
Legal Representation in Your Arizona Military Divorce
Any divorce can be emotionally difficult and present a series of stressful decisions. However, the process can quickly become overwhelming during a military divorce. Factors such as contested divorces, child custody and support, and asset division are compounded by the various military rules regarding location, retirement, and VA disability.
When you work with a military divorce lawyer in Arizona, you have the benefit of approaching military divorce with a knowledgeable legal guide who can advocate for you. You can approach your divorce with confidence and ensure you are following the right legal guidelines to achieve the best possible solution for your family. Military divorce attorneys can make the divorce process as easy on you as it can be.
Difference Between a Military Divorce and a Non-Military Divorce
Military and civilian divorces must both address divorce components as dictated by the state, including alimony, division of property, and child custody and support. However, a military divorce is also subject to military guidelines and federal laws. This means certain assets like retirement disbursements and healthcare insurance are handled according to the Department of Defense’s rules.
Another important distinction involves default decisions. In a civilian divorce, after one spouse serves the other spouse with divorce papers, that spouse must respond within a certain time period. In many states, if that spouse fails to respond, the court can offer a default decision on the divorce without their input. Active duty members of the military have protections in place preventing default judgments from occurring when they are unable to appear in court.
Filing a Military Divorce
To begin a military divorce, the first major decision involves where you will file. This has a significant impact on your divorce, as the state you file in will determine how child support, spousal maintenance, child custody, and division of property are handled.
A military divorce may be filed in the following places:
- The state the service member currently resides within. This is typically where the service member is stationed, but this only applies if the individual meets that state’s domicile requirements. In Arizona, you must be domiciled for 90 days before you can file for a divorce in the state, but other states have different rules.
- The state the service member has legal residency in. Many times, this is the service member’s home of record and is a state the individual does not currently reside in but plans to return to after active duty.
- The state the civilian spouse currently has residency in. Often, when a military couple is separated in two different states, divorce is filed where the civilian spouse lives.
The state you file in can have a significant impact on your divorce proceedings. For example, Arizona is considered a no-fault state, meaning that you don’t have to specify that one spouse was at fault and caused the divorce. In Arizona, divorcing couples can state that the marriage is “irretrievably broken” to establish grounds for divorce. This is the same for civilian and military divorces in the state. However, other states may require you to prove infidelity or other ways your spouse was at fault for the circumstances of the divorce.
How Do You Serve an Active Duty Service Member Divorce Papers?
Civilian spouses who file for divorce must serve divorce papers to the other spouse. If you want to file your divorce in Arizona, you must serve your spouse divorce papers, either personally, by mail, by a process server, by a sheriff, or with an alternative measure granted by the court. If your spouse is in another state, overseas, or underway, this can be difficult, especially if your spouse claims they did not receive your mailed service.
In most domestic divorce cases, hiring a process server and working with your spouse’s chain of command is the best way to ensure service. Speak with a military divorce attorney to determine the best option.’
If one or both spouses are in another country, the process is more complex. The papers must be filed so they comply with the Hague Convention, the other country’s laws, and other applicable international treaties. If these guidelines and laws are not followed, the filing may be rejected. An experienced attorney can ensure you meet the necessary requirements and file the papers correctly.
If the divorce is uncontested, you may not need to serve your spouse with divorce papers. An uncontested divorce means that you and your spouse agree to a divorce. The other spouse can waive the required serving by filing an affidavit stating that they are aware of the divorce proceedings.
Responding to Divorce Papers While Serving
Active duty service members are protected from default judgments by the Servicemembers Civil Relief Act (SCRA). This act also provides protections for other lawsuits, such as bankruptcy and mortgage foreclosure.
When a civilian couple divorces, the spouse who is served the papers typically has 20-30 days to respond. However, in the event of a military divorce, the service member can request a stay until the military service preventing them from participating has ended. This is because a service member’s duty prevents them from fully and fairly representing themselves in person.
A service member can theoretically postpone the divorce proceedings until the end of their current military duty and up to 60 days after. However, most courts will not continue to grant stays indefinitely. If the divorce is uncontested and the military spouse agrees to the divorce, they can waive the right to postpone the proceedings. The divorce can only be postponed under the SCRA, and it cannot be canceled.
If a default judgment is entered, the service member can apply to reopen the judgment so long as they are still on active duty or within 90 days of being on active duty.
Division of Property in a Military Divorce
Arizona’s community property laws mean that all marital property must be equally divided between spouses. For any divorce, civilian or military, marital property includes any assets or debts obtained during the marriage. Individual property can include things like assets owned before marriage, inheritances, or gifts only one spouse receives.
While Arizona Family Court and your own negotiations with your spouse will determine how these regular assets and debts are divided, military assets are typically considered a separate category. In military divorces, there are specific challenges regarding Veterans Affairs (VA) mortgages, military healthcare, and veteran pensions. These FAQs can help you determine which asset types are divisible during divorce and under what circumstances division occurs.
Does an Ex-Spouse Receive Military Retirement Benefits?
Federal disability benefits are not considered community property like retirement benefits are, and they are excluded from property division. However, the Uniformed Services Former Spouses’ Protection Act (USFSPA) dictates the division of other military retirement assets. This is a federal law that outlines how much of a service member’s retirement benefits must be disbursed to their civilian spouse during a divorce. The length of service and the length of the marriage can impact how retirement assets – as well as privileges like TRICARE health insurance, commissary/Exchange access, and base access – are distributed.
What Is the 10/10 Rule for a Military Divorce?
The 10/10 rule refers to the length of marriage and the length of service in the military. It means that the marriage has lasted at least ten years, and the service member has had ten years of active duty overlapping that time.
There is a misconception that if a couple doesn’t meet this rule, retirement benefits won’t be divided as community property. This is not the case since retirement benefits are still split between spouses. However, if the 10/10 requirements are met, the civilian spouse will have direct access to benefits or will be sent their portion directly. If the 10/10 rule is not met, the service member will receive their benefits in full and is responsible for providing their ex-spouse with their portion of the benefits.
Healthcare Benefits in a Military Divorce
Military members and their families receive healthcare insurance via TRICARE. As mentioned, a civilian spouse may receive a portion of these healthcare benefits after divorce if they meet certain requirements. The length of access depends on the length of the marriage and how long the service member served.
If the service member served for less than 20 years in the military and did not reach full or medical retirement, the married couple can receive healthcare under the Department of Defense Continued Healthcare Benefit Program. After separation, an ex-spouse can keep the benefits for 36 months before they are no longer eligible for military healthcare coverage.
If the military spouse served for more than 20 years, healthcare benefits in a military divorce are divided based on how that time overlaps with their marriage.
What Is the 20/20/20 Rule for a Military Divorce?
20/20/20 means that:
- The military spouse served 20 years
- The couple was married for 20 years
- These two 20-plus-year periods overlapped for at least 20 years
This means the civilian ex-spouse is eligible for their own full TRICARE health insurance plan, retains military Post Exchange access, and keeps base and commissary benefits.
What Is the 20/20/15 Rule in a Military Divorce?
In this scenario, the 20 years of service and the 20 years of marriage overlap for at least 15 years. The civilian ex-spouse would be eligible for TRICARE insurance coverage for up to a year after the divorce is finalized. However, they do not retain exchange, base, or commissary benefits.
VA Mortgages in a Military Divorce
Civilian divorces typically deal with civilian home mortgages, and spouses can divide real estate property evenly under Arizona law. Military couples generally purchase a home with their VA Guaranteed Home Loan, which adds further complications to the divorce.
Under VA occupancy requirements, the service member must occupy the home or plan to do so in a reasonable time. If the service member is on active duty or away from the home for another employment reason, their civilian spouse and/or dependent child must occupy the home. A VA loan makes selling a home during divorce a complicated option for many couples. An experienced military divorce attorney can discuss how a VA home loan may be handled in your unique situation.
Family Support in a Military Divorce in Arizona
Family support can include both spousal maintenance (alimony) and child support if the couple has children together. In an Arizona military divorce, both spousal maintenance and child support follow the same state guidelines as a civilian divorce. Either spouse can request maintenance, and spouses can either agree on an amount or determine it in court.
In military divorces, however, these two types of support cannot exceed more than 60% of the military service member’s pay. If the service member is providing for a new spouse or child, the support cannot exceed 50%. This is a federal limitation and applies regardless of the state the divorce is filed in.
Military regulations also prohibit servicemembers from denying family support to their families based on their military status. Military regulations require reasonable contact, parental responsibility, and financial support from service members who are parents.
What Alimony Is a Military Spouse Entitled To?
Spousal maintenance is assigned in Arizona if one spouse is found:
- Unable to provide for their basic and reasonable needs.
- Unable to become self-sufficient through employment because of age, earning capacity, or childcare requirements.
- To have made significant contributions to their spouse’s education or career.
- To have reduced their own career or educational opportunities for their spouse’s benefit.
Enforcing Family Support Orders
If a service member is refusing or unable to pay child support or spousal maintenance, there are options. If the family support was court ordered yet no payments are made, an Arizona military divorce attorney should help you contact the service member’s chain of command to begin a solution.
The commander can :
- Record reprimands on the service member’s permanent service record
- Request pay deductions or pay forfeiture
- Request criminal sanctions
The military can only enforce payments after the civilian spouse has made contact and can’t enforce back payments. They also can’t enforce non-court-ordered payments.
A service member can request relief from family support obligations based on allegations that:
- They suffered domestic violence
- The civilian spouse has already received support
- The civilian spouse’s gross income is higher
- The spouses have lived separately for more than a year
Finding the Right Divorce Lawyer in Arizona
Military divorce presents significant challenges on top of an already difficult process. If you or your spouse are currently in the military and you are encountering these additional roadblocks, it’s essential to reach out to an experienced Arizona military divorce lawyer to ensure your interests and rights are protected. The attorneys at The Valley Law Group can guide you through the process of a military divorce and spousal maintenance provide compassionate legal support. If you have further questions regarding military divorces, contact our team today.
*Editor’s Note: This article was originally published May 7, 2021 and has been updated May 17, 2023.
Ryan Reppucci, Founder/Director of Legal Operations of The Valley Law Group, is recognized as one of Phoenix’s leading family law attorneys. After graduating from Arizona State with the highest honors and inclusion in America’s most prestigious student honor societies, Ryan attended the University of Detroit Mercy School of Law. His career as a law student was decorated with numerous awards, including the University of Detroit Mercy School of Law Book Award, nomination for membership in Who’s Who Among Students in American Colleges and Universities, as well as Moot Court.