Ask any of the almost 19,000 active service members and 15,000 reservists who live in Arizona, and they’ll tell you: Military service can be valuable and rewarding, but it’s also hard. There’s deployment and the frequent moves. Families end up thousands of miles away from their hometowns, separated from extended families and support. Depending on the service member’s rank and length of service, the pay can be low, while civilian spouses are typically under-employed. That’s why there’s no doubt that divorce is a concern.
It’s hard to compare the divorce rate in civilian and military families (due to a difference in how they are tabulated), but this statistic is informative. According to a 2019 survey, of the professions with the highest divorce rates in the United States, three of the top ten careers were related to the military.
And when a military couple does get divorced, there are complications as well, both from the procedural and substantive perspectives. Let’s discuss some unique issues that need to be addressed during an Arizona military divorce.
Divorce in Arizona is for Arizonans
To obtain an Arizona divorce, at least one of the spouses must be an Arizona state resident. One or both must be able to prove that their primary residence is located in Arizona. (For example, they need to have an Arizona Driver’s License or be registered to vote in the state.) They also must have lived in the state for at least 90-days before filing for divorce. Service members are exempted from the 90-day requirement if they can prove that Arizona is their home state or military domicile, which means state of permanent residence.
Military Service can Delay Divorce Proceedings
The Servicemembers Civil Relief Act (SCRA) can lengthen the divorce process.
For example, one of the essential steps in the divorce process is for the petitioning spouse to serve (give) the actual divorce litigation papers to the non-petitioning spouse. A civilian non-petitioning spouse usually has 20 days to respond to the filing. However, service members can have an extension of 90 days following completion of their current military duty before they reply. And they can ask for additional time if they need it.
While proceedings can be delayed because of the service member’s military service, on the other hand, a service member can also ask for matters to be expedited due to their service.
Arizona’s No-Fault Divorce
As with most other states, Arizona is a “no-fault” divorce state. However, Arizona is one of a handful of state’s that allow for a “covenant marriage” which requires an allegation of fault.
In a no-fault divorce by consent decree, both spouses agree that the marriage is irreparably broken, and they wish to divorce. During an “at-fault” divorce, a petitioning spouse alleges that the divorce is due to the non-petitioning spouse’s wrongdoing. They must prove that allegation before a divorce is granted (although the responding spouse could admit to the allegation).
Child Custody/Legal Decision Making
Arizona law has largely dispensed with the traditional notion of “child custody.” Instead, Arizona is concerned with “legal decision-making,” who can make legal decisions regarding the child’s well-being, and “parenting time,” when a child is in the physical presence and care of one parent. Either one or both parents can hold legal decision-making authority, and parenting time can be awarded to one or both parents. Both determinations can be made separately. If the parents do not come to a voluntary agreement, a family court judge will make the determination.
Parents in Arizona will also need a parenting plan as part of their divorce decree, which lays out the specifics of where the child will be raised, how the parents will allocate vacations and holidays—and even how they will provide transportation between households.
While the parenting plan is important for any divorcing family, military parents may want to have provisions that address what should happen in the event of a parent’s change of duty station, deployment, and other emergency and contingency events.
Under the SCRA, if the service member is unavailable due to their service, there can be no permanent orders changing existing custody orders until they are available. If custody plans are changed while the service member is unavailable, the court will reinstate the previous custody plans unless it’s against the child’s best interests. And the non-deployed parent must bear the proof of convincing the judge of that.
SCRA also allows that a deployed service member with visitation rights can petition a court to delegate their visitation rights to someone else while they’re deployed.
Division of Property
Arizona is a “community property” state. In a community property state, married couples share ownership of all property they acquired during the marriage (i.e., community property), so when divorcing, each should receive half the value of the marital estate.
Most property acquired during a marriage is presumed to be community property, while separate property is owned by one spouse—usually consisting of what they owned before their marriage.
When considering spousal support, it’s important to factor in that military children will still qualify for dependent benefits. Still, most military benefits for a spouse end as soon as the divorce is finalized. (There is a notable exception: A divorced spouse of a retired veteran may be entitled to a portion of the service member’s retirement pension if they were married for more than 20 years. They can also be a beneficiary for the service member’s survivor’s benefits.)
Divorce is never easy. It can be even more difficult if you or your spouse are in the military. If you are considering a military divorce, contact our office (by phone at: 602-548-3400) for a confidential consultation with one of our family law attorneys.
Fred Ruotolo is a military divorce and family law attorney Scottsdale, Arizona. Mr. Ruotolo is a partner with Stewart Law Group. The firm has helped many clients navigate the legal complexities of divorce, child custody, child support, spousal support, property division and child relocation disputes.
