If you are going to get a divorce and you or your spouse is a member of the military, things will proceed somewhat differently than if you were both civilians. It’s important to know these differences and what you will need to do to proceed with a divorce in Arizona in these circumstances.
Filing for Divorce
In the military, it is common for a spouse to be located in one state while the other spouse has a duty station in a different state.
One of the first things to know is that it matters where your case is filed for a military divorce. This is because the laws of the state where you file will control things such as child custody, child support, spousal maintenance, and division of property and assets. The laws for divorce in Arizona will differ from those in Oregon, Florida, New York, etc., for example.
If you are going to be getting a divorce, you will want to consider which of the states will have laws that you feel are most agreeable to what you want from the divorce. Where the divorce is filed will provide that state with jurisdiction for the case, and this can have repercussions.
Arizona is a community property state. This means that the assets and debts that were acquired during the marriage will typically be split 50-50 in divorce. The only time that this doesn’t happen is if any circumstances would potentially prevent this from happening. For example, if it’s proven that one spouse spent money frivolously during the marriage and was wasteful with community funds, the court might rule that the assets will be split differently.
It’s important to note that not all states will divide property this way. Other states may favor one spouse more than the other, and the division will not be down the middle. It’s important to keep in mind that it’s not just the laws regarding property division that can be different. Spousal support might be greater in some states, or it could be easier to get child custody in some jurisdictions.
Therefore, you will want to carefully weigh the laws and rules in the states where it may be possible for you to file for divorce.
Being a Resident Before Filing
Additionally, there are residency requirements when you are filing for divorce. If you are at a new duty station in a state where you aren’t a resident, you will need to establish residency before you can file if you will be filing in that state. Let’s look at the rules in Arizona.
To file for divorce in Arizona, one or both of the spouses need to have lived in the state for at least the past 90 days before filing. You or your spouse will need to have taken action to show that Arizona is your primary residence. This might include registering to vote, for example.
Keep in mind that if you don’t live in Arizona, but your spouse does, you can still file for divorce in the state as long as they’ve been there for 90 days or more.
Serving the Divorce Papers
Once the residency requirements are satisfied, the person who is petitioning for the divorce can turn in the paperwork and serve the divorce papers to their spouse. It can sometimes be more difficult to serve divorce papers in the military in those cases where an active duty spouse may be located overseas and potentially in a war zone.
You will have 120 days from filing the divorce papers to have them served to your spouse. If they aren’t served in that time, you will need to file for divorce again, as the petition for divorce will typically be dismissed. If you serve the papers correctly, but your spouse doesn’t respond, you will have to provide to the court that your spouse is on active duty by filling out a military affidavit. The courts will often give active-duty military members more time to respond.
Receiving Divorce Papers
Those who receive divorce papers will not have to come home to deal with the divorce. The Servicemembers Civil Relief Act provides active-duty military with protections from divorce proceedings while on active duty. It means that the court will not default the divorce if you can’t respond to the petition with which you were served. It is possible to have the proceedings postponed, sometimes up for the entirety of the duty and an additional 60 days.
This is done to ensure that the military member can be there for the divorce and have proper advocacy on their behalf. Otherwise, they would not be able to defend themselves and be properly represented in the divorce.
Child Support and Alimony
In the state of Arizona, the rules for spousal maintenance and child support will be the same whether there are military personnel involved or not. It’s important to note that child support and spousal maintenance are not allowed to be more than 60% of the military member’s pay and allowances.
If your children are supposed to be receiving child support from your ex, and they have not paid, you can write to your ex’s commander. Typically, the military is adamant that their service members are responsible and that they pay what is owed, especially when it comes to child support. In some cases, the commander will enforce that these payments are made. They can punish the soldier or sailor, deduct their pay, and even levy criminal sanctions against them.
Get Help from an Attorney
Whether you are the one who wants a divorce or you were just served with papers, you should get in touch with an attorney. There is a lot to consider in a divorce, and things can be even more complex with military cases. Talk with an attorney who has experience with these types of cases. They can help you understand what you need to do and make sure that your rights are protected.
