People serving in the armed forces or married to a member of the armed forces need to know Arizona law will not control every legal proceeding. Because one party or both parties are serving the United States, certain Federal laws will protect the service member from litigation while deployed. Federal law may also affect issues of legal decision-making and parenting time, and what portion of military earnings will be considered in gross income calculations for child support and spousal maintenance purposes. This guide will look at when Federal laws influence Arizona family law and how a Mesa divorce attorney can potentially help.
Has the Petitioner Met the Jurisdictional Threshold?
A civilian party filing for separation or divorce must have lived in Arizona for 90 days before filing the petition. Likewise, a service member must be stationed in Arizona for 90 days before filing the petition. Arizona wants to prevent people from moving to Arizona solely to take advantage of Arizona’s community property law. Special rules apply for service members who are deployed or stationed somewhere that isn’t their permanent domicile. A service member is allowed to elect their “home state”. Meaning a service member has the option to elect to be “domiciled” in Arizona if, for example, his or her parents live here, although the service member hasn’t lived here in 10 years. The “home state” election could make it very difficult for a spouse in Missouri to come and defend a divorce action in Arizona. Nevertheless, this has occurred.
Deployed or Impending Deployment
A civilian spouse who wants to file a petition for divorce should be aware of the Serviceman’s Civil Relief Act (“SCRA”). When a service member has been deployed outside the state, the other party cannot begin divorce proceedings (or establishment proceedings to determine paternity and child support) during deployment. They must wait until the service member has returned. The SCRA gives the service member a 90-day extension. Viewing it differently, the SCRA favors the civilian party, by allowing them a 90 day period to establish Arizona residency while the service member is deployed. On the other hand, a delay in establishing child support payments could be very costly for the custodial parent of a child whose parent is a service member.
Notice of Deployment
When a service member parent receives a deployment notice, it will have a major impact on their parenting rights and responsibilities. Arizona statute 25-411 allows the military spouse to modify legal decision-making and parenting time. If a service member parent has notice of impending deployment, either party may ask for a temporary modification of the parenting arrangements based upon deployment resulting in a substantial impact and change upon current plans. The service member parent, upon reasonable, prompt notice of deployment to the court, as well as a demonstration of sound reasons, will be permitted to give evidence and testify by telephone or video conference.
Exempt Military Benefits
If a service member is injured during service, resulting in a disability benefit, this benefit does not count as gross income when calculating child support. Moreover, the Arizona court cannot compensate the civilian partner for the reduction in income by awarding them more nonmilitary income. Even if the civilian partner supported the service member during and after their injury, the disability award solely belongs to the service member.
Long Term Marriage, Without Minor Children
The Uniform Services Former Spouse Protection Act only applies under a narrow set of circumstances. A marriage must have lasted for twenty (20) years, and the service member spouse must have served at least twenty (20) years in the armed services. If the statute applies, the former spouse may receive:
- Exchange services
- Commissary benefits
Importance of An Attorney
Because Federal laws may alter an Arizona divorce, separation or annulment, both the civilian and service member spouse should find a lawyer who specializes in military divorces. Other issues to consider include security clearances and special precautions to safeguard the privacy of the service members and the government. Your attorney will need to ask for a sealed file and closed proceedings that will not be open to the public. Your attorney can assist in negotiating a fair settlement for the spouses and minor children.