Phoenix Military Divorce Lawyer
A Phoenix military divorce is different than a civilian divorce because state and federal laws apply.
Military Members are Protected in an Arizona Divorce
Active duty military personnel are protected against default actions when they don’t respond to divorce actions. These laws are on the books to prevent spouses from taking legal action when their active duty military husbands/wives were deployed and unable to respond.
These protections are outlined in the Soldiers and Sailors Civil Relief Act, 50 UCS section 521. (SSCRA)
Reservists and members of the National Guard (when activated under Title 10, United States Code) are also protected under the SSCRA.
A court in Arizona has the discretion to postpone divorce proceedings for the entire time the service member is on duty, and an additional 60 days.
The SSCRA right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
The Judges guide to the SSCRA talks about the delay of judicial proceedings:
>A servicemember who is a party in civil (not criminal) judicial proceedings may obtain a stay of these proceedings if certain conditions are met.
>The request for a stay can be a motion by the member or on the court’s own motion.
>The court must find that the member’s ability to prosecute or defend is “materially affected” by reason of his or her active duty service.
>Once this finding of material effect is made, the member is entitled to a stay for such period as is necessary until the material effect is removed.
>Since courts are reluctant to grant long-term stays of proceedings, they can and should require members to act in good faith and be diligent in their efforts to appear in court.
The Judges guide to the SSRA states what evidence the judge may ask for to demonstrate “Material Effect:”
>An affidavit setting out all the facts and circumstances, usually executed by the member or the member’s commander.
>Ask for a copy of the member’s Leave and Earnings Statement (the military equivalent of a pay stub) to show his or her Base Pay, Basic Allowance for Housing, Basic Allowance for Subsistence, tax withholdings, voluntary allotments to pay bills or support, and accrued leave.
>Remember that members from all branches of military service, whether buck private or rear admiral, get thirty days’ leave annually, accruing at the rate of 2.5 days per month (although military necessity may limit when the leave may be taken).
>Request a more specific affidavit detailing the member’s efforts to appear in court, for example, and the next court date when he or she would be available.
>Keep in mind that members who are going through basic or advanced training may be unable to appear in court due to the training schedule; there are no extra days built into the schedule to accommodate court dates, depositions or family emergencies, and being absent from training typically means that the trainee will have to repeat the same training program from the beginning.
Notifying (Serving) an Active Military Spouse of a Divorce in Arizona
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for an Arizona court to have jurisdiction over the active military member.
If the military member doesn’t contest the divorce, the military spouse may not have to be served if he or she signs and files an affidavit acknowledging the divorce proceedings.
If you file for divorce proceedings in Arizona, and you and/or your spouse is active duty military, you must make sure that:
– You or your spouse reside in Arizona, or
– You or your spouse are stationed in Arizona
Property Division in an Arizona Military Divorce
Arizona divorce property division laws are used, but the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) to lay out how military retirement benefits are calculated and divided upon divorce.
The Defense Finance and Accounting Service answers an important question:
“Are former Spouses of military retirees automatically entitled to a portion of the retirees’ retired pay?”
No, there is no Federal law that automatically entitles a former spouse to a portion of a member’s military retired pay. A former spouse must have been awarded a portion of a member’s military retired pay in a State court order.
The Uniformed Services Former Spouses’ Protection Act (USFSPA), Title 10, United States Code, Section 1408, passed in 1981, accomplishes two things. First, it authorizes (but does not require) State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding.
Second, it provides a mechanism for a former spouse to enforce a retired pay as property award by direct payments from the member’s retired pay.
The federal laws will not divide the military member’s retirement to the spouse unless they have been:
1) Married ten years or longer, and
2) Married while the member has been active duty military for that ten year period.
What about Child and Spousal Support in an Arizona Military Divorce?
Child support and spousal support awards may not:
– Exceed 60% of a military member’s pay and allowances
-Normal Arizona child support laws, calculations, and schedules are used to determine the amount of child support to be paid