Yuma Military Divorce Lawyer: Defending Your Interests in Military Divorce

Understanding Divorce Laws in Arizona and How Military Rules Apply

Deciding to end a marriage is always challenging. It changes the family dynamic and can impact every area of your life, from where you live to your finances. However, when one of the parties is a service member, there are even more aspects to be aware of and navigate. If you are going through a military divorce, it is crucial to understand what is involved and what rules apply to ensure you get a fair settlement.

Whether you’ve recently decided to divorce or are still considering all of your options, the first step is to speak to an attorney about your rights and what to expect from the process. If you or your spouse is military personnel, the team at Arizona Family Law Attorneys can provide legal counsel about how to move forward and what you may be entitled to. Call our law office to find out more.

What Are Arizona’s Divorce Laws?

Each state has specific laws when it comes to the process of divorce. Knowing these rules is essential to ensure your case is filed correctly and ready to be heard in the family court. Some of the most important aspects to be aware of in Arizona are the community property rules, no-fault divorce filing, and the residency requirement.

Community Property State

Arizona is one of less than a dozen states that still operate under community property rules. In a community property state, there are two things to be aware of. First, all property acquired during the marriage is generally considered marital property and, therefore, subject to division according to the community property rules. However, there are a few exceptions to this.

In general, any items gifted to you by someone else — even if that someone else is your spouse — are considered separate property. The property you inherit either through a will or after someone passes without a will is also considered your sole property. This can be nuanced, so it’s always important to consult an attorney. For example, if you receive an inheritance and use those funds to buy the marital home, this could be considered community property, even if the house is only in your name. Determining marital property and separate property is the first step before the division process can take place.

Another potential issue to be aware of is that the property division process in a community property state is generally a 50/50 split. This contrasts with other states where the focus is on equitable distribution. Significant assets, such as real estate, may require that the asset be sold and the profits split evenly, or one party may buy out the other’s share. This can be an incredibly challenging process, both logistically and emotionally, and an attorney can help you navigate these issues and ensure that you get everything you are entitled to.

No-Fault Divorce State

Arizona is also a no-fault divorce state. While some states require the parties to list a specific reason for divorce, such as infidelity or irreconcilable differences, Arizona does not have this requirement. Instead, either party can file for divorce without stating a reason. This can be helpful because it often results in a faster divorce process and less emotional conflict, especially if the parties can also agree on the settlement terms.

Residency Requirements

Each state has its own residency requirements before someone can file for divorce under that state’s jurisdiction. Arizona requires that at least one of the parties must have lived in the state as their primary residence for 90 days before filing the divorce petition. This is especially important for military families to be aware of because they often face relocations. For example, if you’ve only lived in Arizona for two months but previously lived in Florida for a year, you would either have to wait another month before filing in Arizona or file for the divorce in Florida, which would be almost impossible logistically to attend hearings and other matters.

Mandatory Waiting Period

Arizona has a mandatory waiting period for divorce that lasts 60 days. This period starts when the divorce paperwork is served. While this can be a surprise to some people, it is beneficial in many cases. The waiting period isn’t just to give you time to rethink your choice or reunite with your partner. Instead, it ensures that both parties have enough time to get an accurate accounting of their assets and debts and come to an agreement, if possible, on issues such as property division, child custody, child support, and spousal maintenance. It also gives you time to meet with an attorney and review your case to ensure you’re getting everything you deserve.

It is essential to remember that while 60 days is the absolute minimum amount of time a divorce takes in Arizona, most divorces will take longer than this — especially when an active duty service member is involved. If there are any issues with the service member being able to respond to the petition, there could be a potential delay. Disagreements about topics such as child custody, parenting time schedules, or asset division can also draw out the process. It is not unusual for divorce proceedings to take several months; in incredibly complex or high-conflict cases, it may take years. Working with an experienced military divorce attorney and being as collaborative as possible with the process are the best steps you can take to expedite your divorce proceedings.

How Does a Military Divorce Affect the Process?

Divorce is a complex legal process all on its own, but dealing with military benefits and rules makes it even more so. This is why working with a family law attorney with experience helping clients with military divorces is crucial. You need someone on your side who knows what benefits you are entitled to and how being part of the U.S. Armed Forces can affect other areas of your divorce, such as child custody and parenting time. Here are just some of the ways that a military divorce can differ from a civilian divorce.

Potential Delays in the Case

The Servicemembers Civil Relief Act states that active duty service members can be granted a stay (delay) in their divorce proceedings if they cannot participate in the process due to their work obligations. This also protects them from default judgments if they do not file a timely response after being served. Service members can request an initial stay of up to 90 days. However, it is essential to note that this isn’t required. If you can participate in the process and want to ensure the proceedings keep moving, you can decide not to exercise this right. In some cases, appointing an attorney to represent you may also be possible.

Division of Military Benefits

Service members and their spouses receive certain benefits, such as post exchange and commissary access, TRICARE health, and military retirement benefits. Retirement accounts and pensions are part of the divorce settlement process, but in many cases, so are these other benefits. Whether a civilian spouse is entitled to military benefits and for how long depends on the number of years they were married and how many years of service the service member has. This can be an incredibly complex part of military divorce proceedings, and it’s imperative to work with an attorney with in-depth knowledge of the rules for military benefits and experience applying them to divorce cases.

More Complicated Child Custody and Parenting Time Schedules

Child custody and parenting time schedules are often the most complicated and contentious parts of getting a divorce. However, military families must also factor in other issues, such as deployments and relocations. For example, there may need to be one custody arrangement when a service member is stateside and another when they are deployed to ensure that there are no delays in decision-making.

Parenting time schedules may also need to be adjusted when a service member is sent away temporarily for training or when they are relocated for a new assignment. Creating a custody arrangement and parenting time plan that covers as many of these potential scenarios as possible can help, but there are likely to be some necessary adjustments and modifications still as the years pass. An experienced attorney can help with both situations.

What Are the Options for Child Custody and Parenting Time?

Child custody and parenting time arrangements can be as unique as the families that have them, and it’s always essential for these orders to reflect the individual needs of the family and the best interests of the children. There are two main distinctions to be made when it comes to child custody: legal custody (known as “legal decision-making” in Arizona) and physical custody, which is more commonly referred to as parenting time in Arizona.

Legal Custody

When someone has legal custody of their child, they have the ability to make decisions about the child’s care. This includes any significant decisions that could have an impact on the child’s well-being, but these generally fall into one of four categories: education, religious/cultural upbringing, medical treatment, and personal care. Legal custody can be either sole or shared. In a sole custody arrangement, both parents still have their innate parental rights, but only one parent is granted legal decision-making ability. The parent with legal custody does not have to consult with the other parent on any decisions or get their approval. However, the parent without legal custody can still go back to court if they strongly disagree with the decision-making parent’s actions or want to petition for a change to joint legal custody.

In a joint legal custody arrangement, both parents have decision-making power. In most cases, the parents need to agree on any significant decisions, and if an agreement isn’t possible, they have to bring the issue to the courts for a judge to decide. In some cases, if there has been a pattern of the parents not being able to make decisions amongst themselves, the judge may award specific decision-making power. For example, the mother may be allowed to make decisions about medical treatment, while the father is allowed to make decisions about education and religious upbringing.

Military families may want to have special considerations built into their custody orders. For example, it’s possible to have an order that allows for joint legal custody to temporarily become sole legal custody if the service member parent is deployed. This ensures that decisions can be made as quickly as possible without having to worry about getting in contact with the service member or getting their approval. When they return from deployment, joint legal custody is reinstated.

Parenting Time

Parenting time refers to how much time the children spend with each parent. The original term was visitation, but this was removed from the Arizona statutes to ensure that one parent wasn’t perceived to be at a disadvantage or “lesser” than the other parent just because they didn’t have as much court-ordered time with the children. There is a wide variety of possible parenting time arrangements. In some cases, one parent may be granted the majority of the parenting time. This is more common in military divorce cases because the service member’s work obligations may make it challenging to exercise half of the parenting time. A potential plan in this case could be that the civilian parent has the children during the week, and the other parent gets the children every other weekend and one weeknight.

However, it’s also possible to have an equal parenting time split. This is referred to as a 50/50 arrangement, and there are a variety of schedules for this option. A common one is for the parents to alternate weeks. This works well if both parents live close enough to the child’s school to be able to provide transportation during the week. However, it does mean that the children have to go an entire week without seeing the other parent, which can be difficult for small children. In this case, you may opt for a 2-2-5-5 or 3-3-4-4 schedule. The parents alternate for a specific amount of days. For example, a 2-2-5-5 schedule would look like this:

Parent A: 2 days
Parent B: 2 days
Parent A: 5 days
Parent B: 5 days

And then the schedule starts over. An attorney can help you determine what type of custody arrangement makes the most sense for your family’s situation and the children’s best interests.

There are other factors that can also impact how parenting time is divided, and actions post-divorce can affect this as well. For example, incidents of domestic violence can result in your parenting time privileges being limited or supervised parenting time being required. If this is an issue you’re facing, it’s essential to talk to a family law attorney as soon as possible to find out how to protect your rights and access to your children.

How Is Child Support Calculated?

If your marriage resulted in children, a child support calculation will need to be performed to determine if one parent should be paying the other. There are several factors that go into this calculation, and each state has its own child support guidelines. In Arizona, child support is determined by looking at both parents’ income — or their earning potential if they are currently not working — and factors such as childcare expenses. How much time each parent is entitled to with the children can also play a role in how much child support is awarded because it’s generally assumed that a parent who has the children for the more significant percentage of the time is spending more on care items, such as food, clothing, and other supplies.

What Is Considered Income?

What the state of Arizona includes in child support income is often different from what parents think of as their income, such as the adjusted gross income used when filing taxes. Child support income includes income from all sources and is calculated before withholding or deduction. Potential sources of income that can be used in the child support determination include:

Salary and wages
Stock dividends
Military pay
Pension payments
Capital gains
Prize winnings, such as from the lottery
Military disability benefits

Service members have specific considerations when it comes to child support that civilians do not. This is because the child support calculations also include things like payments for the Basic Allowance for Housing. Even living in government-provided housing can affect your child support because it can significantly impact your living expenses. The child support calculations factor in the fair value for all applicable military benefits.

In general, child support in Arizona continues until the child turns 18 or graduates high school, whichever happens later. Depending on when your divorce is filed, this could mean several years of child support payments, so it’s vital to ensure that your payments are accurate and reflective of both parents’ financial situations and that you understand what steps to take if a modification needs to happen later on.

Requesting a Child Support Modification

If there is a significant change in circumstances at any point after the original child support order is put in place, you may need to request a modification. A substantial change in circumstances is generally defined by the child support office as something that results in a change of at least 15 percent in the ordered child support amount.
If there is a change that does affect the child support amount, the other parent is allowed to object to the change. In this case, a hearing may need to be scheduled for a judge to hear arguments as to whether the child support change is warranted and make the final determination. Talking with a family law attorney can help you find out if your child support is likely to change due to an increase or decrease in income or other factors.

How Is Property Divided?

Property division is one of the primary objectives of a divorce, but it can also be one of the most complicated, especially in situations where the couple has high-value assets or there are military benefits that must also be divided. The divorce lawyers at Arizona Family Law Attorneys have the knowledge and experience to guide you through this process and make sure you get what you’re entitled to as part of the settlement.

Assets

Marital assets are divided equally in most cases in Arizona, unless there is a prenuptial agreement in place that dictates otherwise. Assets include funds in checking and savings accounts as well as physical property, such as household furnishings, vehicles, and investment accounts. While it’s true that the marital property has to be divided equally in Arizona, that doesn’t necessarily mean that every asset has to be sold so the proceeds can be split. In some cases, your attorney can help you negotiate an alternative arrangement. For example, one party might get cash funds from the bank account while the other gets a vehicle and household furnishings that are of equal value.

Debts

One thing that often surprises couples during a divorce is that debts are also considered part of the marital property and are divided equally. This can be especially devastating for some people because they may not even be aware of all of the debts their spouse has accumulated. It’s not uncommon to find out through the financial disclosure process in divorce that one spouse has opened up a credit card or taken out loans without the other person’s knowledge. Unfortunately, Arizona’s laws state that any debts that were taken on during the marriage are the responsibility of both parties and must be split equally.

Military Benefits

As discussed previously, some military benefits are also subject to division during the divorce process, and in some cases, civilian spouses can even retain access to military perks, such as the commissary. This is determined by a combination of how long the couple was married and how many years the service member served. There are three main rules to be aware of.

10/10 Rule

The 10/10 rule is part of the Uniformed Services Former Spouses Protection Act (USFSPA). It states that civilian spouses are able to access their share of the service member’s military retirement pay directly if two criteria are met:

The marriage must have lasted for a minimum of 10 years
The service member must have at least 10 years of service

Qualifying for direct access to military retirement benefits through the 10/10 rule can help ensure that the civilian spouse actually gets the money they are entitled to and doesn’t have to communicate or otherwise interact with their ex-spouse to do so. This can be a welcome relief if the relationship is strained or the service member is difficult to contact.

20/20/20 Rule

If the couple was married for a long time, the civilian spouse may be entitled to other benefits such as ongoing TRICARE and access to the post exchange. To be eligible, three criteria must be met:

The marriage must have lasted for at least 20 years
The service member must have at least 20 years of service
The marriage and years of service must have overlapped by at least 20 years

If your situation meets these criteria, discuss your options and how to ensure you get your benefits with an attorney.

20/20/15 Rule

The 20/20/15 rule is similar to the 20/20/20 rule. Instead of the marriage and years of service needing to overlap for 20 years, they must only overlap for 15. This entitles the civilian spouse to one year of TRICARE benefits after the divorce. This can help ensure the civilian spouse can keep access to healthcare while they work on finding other coverage, such as through their employer or through the Healthcare Insurance Marketplace.

What Is the Process for Filing for Divorce?

Even if you’re sure about your decision, filing the paperwork for your divorce petition can still feel overwhelming. It can help to do this with an attorney who can ensure that all of the paperwork is filled out correctly and that the forms are filed with the correct courts. The process for filing for military divorce is largely the same as it is with a civilian divorce once jurisdiction has been determined and follows the general steps below.

Meet With a Family Law Attorney

Before you make any official decisions or start filling out paperwork, you first need to meet with an attorney. The lawyer you work with should be familiar with both Arizona state law and the federal regulations and policies that apply in a military divorce. You should meet with an attorney as soon as you are considering divorce.
Scheduling an initial consultation gives you the chance to present a short overview of your case for the lawyer’s review, and they can help you understand what’s next. They can also advise you of any other potential options, such as a legal separation, that may help you get a break from the marriage to determine if divorce is really what you both want while still maintaining your access to military benefits and having an official custody and support order in place.

At your consultation, it’s essential to ask any prospective attorney about their experience with military divorce and how they generally approach these kinds of cases. You can also ask about things like how they communicate with clients to provide updates and what they do if a case takes a high-conflict turn. This can give you valuable insight into how the firm works and help you ensure it’s a good fit for you and your case.

File Your Divorce Petition

Once you’ve talked with an attorney and understand your rights and options, it’s time to actually file the divorce petition. Your attorney will walk you through this process and handle most of the paperwork for you. You will need to provide financial affidavits to document your income, assets, and debts for the court, and your spouse will need to do the same. You may also need to present a proposed custody arrangement and parenting time schedule. Once all of this is gathered and filed with the courts, the other party will be served.

Wait for Your Spouse’s Response

In the state of Arizona, someone generally has 20 days to respond to a divorce petition. The 20 days don’t start until they have been successfully served. In military divorce cases, this can be more difficult. If the service member is away on a deployment, it can even be impossible. Remember that active duty service members are also entitled to request a stay in divorce proceedings for at least 90 days if they are unable to participate, which can also lengthen this process.

Negotiate the Terms

Once your spouse does respond, they will either note that they are in agreement with the proposed terms in the petition or file a response that contests the divorce petition. In some cases, if there are only a few points of contention, it can be helpful to try mediation as an alternative dispute resolution method. If your relationship with your spouse is otherwise amicable, this can help you avoid a lengthy trial and can be less emotionally draining as well.

However, if the other party disagrees with many of the terms of the petition, they can file a response that contests those terms. Mediation may still be attempted in this case, but if it is unsuccessful, the divorce will move forward to trial and litigation. In this case, both parties will be able to present their proposed terms in court, and the judge will take both into consideration before making a final determination.

It’s crucial when working with an attorney to have someone who is just as comfortable with mediation as they are with litigation. While it’s always a best-case scenario if the two parties can come to an agreement on their own or with a bit of help, the reality is that this doesn’t always happen, and you need someone who is able to fight for your rights and interests in court.

Get the Final Divorce Decree

Once all of the terms of the divorce have been decided, whether between the parties themselves or through the litigation process, the judge will issue the final decree granting the dissolution of the marriage. This officially terminates the marriage and leaves both parties free to remarry when and if they wish.

Keep in mind that if you have children with your ex, the divorce decree doesn’t necessarily mean that you are done with the courts. There may be issues with co-parenting or parenting time that need to be adjusted as time passes, and it’s essential to be prepared for this possibility.

What Are the Benefits of Working With an Experienced Military Divorce Attorney?

While it’s true that you don’t necessarily need a family law attorney to file a divorce petition in Arizona, those who do often see vastly better outcomes. Working with an experienced military divorce attorney provides several benefits, including:

Having someone on your side who has extensive knowledge of military divorce laws
Understanding all of the benefits civilian spouses are entitled to during and after a divorce
Getting help creating child custody and parenting time plans that meet the needs of your family
Having someone who is adept at legal negotiations to represent you and communicate on your behalf with your spouse’s attorney
Experiencing less stress and more peace of mind because you know you have someone who can handle all of the legal challenges that may arise so you can focus on helping your family move forward and rebuilding your life

If you’re overwhelmed with the idea of a military divorce but know that ending your marriage is the right step for you and your family, the team at Arizona Family Law Attorneys can help. We have the knowledge and experience you need to ensure that you get what you’re entitled to and follow all of the state and federal laws that apply to your divorce proceedings. If you’re ready to take the next step, call our office at 480-448-0608 to schedule a consultation and learn more about how our firm works.