Phoenix Military Divorce Attorney
DIVORCES, PATERNITY, LEGAL SEPARATIONS AND OTHER FAMILY LAW CASES FOR MEMBERS OF THE MILITARY AND MEMBERS OF THE COAST GUARD, COMMISSIONED OFFICERS OF THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION AND THE PUBLIC HEATH SERVICE.
There are some specific and general differences between Family Law cases for service members compared to civilians. Our Phoenix military divorce attorneys take on cases including divorces, legal separations, annulments, child support, paternity, child custody/legal decision-making, parenting time/visitation, and grandparent’s rights issues. Some of the differences are discussed below.
We hope the information provided herein is helpful in answering your questions, but please do not hesitate to contact us if you plan on filing a case, have already filed your case, if you have received legal documents that were filed against you or are just obtaining some preliminary information at this time.
Not understanding your legal rights and obligations can greatly negatively affect you. Legal proceedings can be very complicated and laws vary from state to state and change over time. Therefore even if you plan on handling your legal matter by yourself it is always a good idea to consult with a military divorce lawyer for additional information.
The topics that may have specific issues that are different for service members compared to civilians are addressed below. Some of those issues are:
- the Servicemember’s Civil Relief Act;
- jurisdiction (which State or Country should your case be filed?);
- issues regarding children (such as legal decision-making and parenting time);
- property issues other than retirement;
- retirement and other benefits;
- spousal maintenance (alimony); and
- child support.
MILITARY CHILD SUPPORT
There should be very few differences in how child support is calculated for service members compared to traditional child support for civilians.
In Arizona child support is calculate pursuant to A.R.S. §25-320 which contains the Arizona Child Support Guidelines, often referred to as simply the “Guidelines.” For more detail regarding Child Support Guidelines, please see that section of our website.
Obviously one of the most important factors used to calculate child support is both parents’ income or their income potential. A child support calculation for both parents is going to start with the Basic Pay that the parents earn. However, for both civilians and service members there can be additional compensation above the Basic Pay. The Court can include additional compensation as income when calculating child support. For example military personal may receive special pay for special duties and skills, allowances such as to address costs of living, and one time bonuses. Many times these additional sources of income will be included as part of the parent’s income when calculating child support. A one-time bonus can be averaged over the year to calculate the income for that year the bonus was received.
Of course if child support is calculated including these additional income sources as part of a parent’s income and then at a later date the parent no longer receives the additional incomes, the child support can be modified (changed). Conversely if at the time of the previous calculation a parent did not have those additional sources of income and latter does start to receive them, the other parent can request to modify child support to increase the child support based on the other parent now making more income. The process for service members to modify (increase or decrease the amount of child support) their child support is identical to process used for civilian parents. Please see the section of our website regarding modifying child support.
Parenting time (how much each parent has the child in their care) also is a major factor in calculating child support. However since the process is no different for service members as civilians please see the section of our website regarding Child Support.
SPOUSAL MAINTENANCE OR ALIMONY
In Arizona alimony is referred to as “spousal maintenance.” Spousal maintenance will be handled for service members in the same manner as for civilians. However, one law specific to service members is pursuant to 38 U.S.C. chapter 11, and Arizona law (A.R.S. §25-530) federal disability benefits awarded for service-connected disabilities shall not be considered by the Court when the Court is deciding whether or not to award the other spouse spousal maintenance and to calculate the amount of spousal maintenance. This is important because one factor used by the Court in calculating the amount of the spousal maintenance payment is the income of the person that is being ordered to pay the spousal maintenance (this person is called the “obligor”). Since spousal maintenance is calculated similarly for service members as for civilians, please see the section of our website for spousal maintenance
SERVICEMEMBER’S CIVIL RELIEF ACT
(Formerly known as the Soldiers and Sailor’s Civil Relief Act)
The Servicemember’s Civil Relief Act, abbreviated as SCRA (formerly called the Soldiers’ and Sailors’ Civil Relief Act) is Federal law codified in 50 U.S.C. App. §§ 501 through 597.b.
The purpose of the law is to protect personnel of certain Federal Government service. The services that the law applies to are: Air Force, Army, Coast Guard, Marines, Navy, commissioned officers in the National Oceanic and Atmospheric Administration, and the Public Health Service (the services are listed in alphabetical order so as to not offend anyone service). The law provides certain protections to service people in those services from being sued while in active service of the United States of America and for up to a year after active duty.
In its simplest form the law allows the service member to request that the legal action be postponed. The postponement is called a “stay.” The stay is allowed due to the fact that the service member’s duties may materially negatively affect their ability to participate in the legal action. Therefore simply being in service is not reason for an automatic stay, there has to be a negative effect as a result of being in the service at the time the case is proceeding. It is important to remember that SCRA is not a permanent prevention of the legal action but is only a temporary delay until the effected service member can participate in the legal action.
Therefore if you receive court documents while you are in the service and you believe your current situation will prevent you from properly participating in that legal action then you should contact us to determine if you can make a request under the SCRA to delay your case. Even if your entire case is not stayed by the SCRA, it is very possible that the Judge will delay specific deadlines or court appearances (hearings or trials). To get specific court delays, called “continuances”, you have to properly request them each time.
It is very important to remember to never ignore legal documents. If you receive legal documents and do not respond to them within the set deadlines the Court may proceed against you by default and award the other person everything they are asking for. Even if you do not ignore the documents but respond to them incorrectly you can also seriously negatively affect your rights.
Issues regarding children may include where or with which parent the child should reside, legal decision-making (this used to be called “legal custody” in Arizona) and parenting time. Generally these issues will be handled the same way for service members as for civilians, so please see the specific sections of our website for the issues you have questions about, but there are some differences for service members (see below).
One issue that service members may encounter more than civilians arises from the fact that one or both parents are service members and will be in two different locations, whether it is different states or countries or sometimes merely in two different cities within the same state. Another issue that may be more frequent for service members then civilians is service members are required to relocate more often.
Arizona will treat the different residences and relocations for service members similarly as for civilians so please check the portion of our website regarding children issues. However, there are some laws in Arizona that are unique for service members when the parents are living in different locations or one has to relocate. Those laws are discussed immediately below.
The general law for both civilians and service members regarding relocation is A.R.S. §25-408 if both parents reside in Arizona. However Arizona law does provide specific protection to service members as a result of their unique need to have to relocate or be in a different location from the other parent. Specifically A.R.S. §25-411 provides that the Court will not use the service member’s mere absence caused by deployment or potential need to relocate due to deployment as the sole factor to allow the other parent to demand a modification of the current parenting orders. Also if parenting time orders are modified due to a service member’s temporary deployment, there are limitations on whether those new parenting time orders will be permanent. These Arizona laws are a common sense approach to ensure that parenting orders are made to address the reality of how the geographic distance of the parents effect parenting time but prevent prejudicing the service member parent for the sole reason that the service member parent is deployed.
It is more common in military families then civilian families for the spouses to live in two different locations for long periods of time. This may cause jurisdictional issues. Jurisdiction is simply the term for a Court’s authority to decide the case. There are two types of jurisdiction. The two types of jurisdiction are, personal jurisdiction and subject matter jurisdiction.
Personal jurisdiction is whether the Court has or does not have authority to make orders against the parties (the people in the case). For example if one spouse or parent lives in Arizona and the other spouse or parent never lived or visited Arizona, then Arizona might not have jurisdiction (authority) over the person that was never in Arizona.
One of the most common mistakes made by service members in family law cases regards personal jurisdiction. For example if you were never in Arizona then Arizona might not have personal jurisdiction over you. If you file legal documents or incorrectly make an “appearance” in the Arizona Court you may have now subjected yourself to Arizona Jurisdiction. There might be advantages for you to have your case in Arizona, but if there are disadvantages, you now have negatively affected your rights. Also if Arizona has personal jurisdiction over you, but not over the other party, then it might be wise not to file in Arizona. That is why it is very important to contact us whether you plan on filing legal documents or have received legal documents from the other side before you file something with the court.
Subject matter jurisdiction is whether the Court has authority to make orders regarding the issues (the subjects) in your case. The most common problems regarding subject matter jurisdiction regards children. Service members will have the same subject matter jurisdiction issues as civilians, but because service members relocate more frequently than civilians service members, they encounter these issues more than civilians. For example, if the parents lived with their child in Arizona, then moved to Georgia, and then separate, which state should make the orders regarding the child? This question is specifically resolved in detail by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). All states have adopted a version of the UCCJEA. UCCJEA issues can be very complicated. You should review the section in our website regarding the UCCJEA and contact us regarding these issues.
PROPERTY ISSUES OTHER THAN RETIREMENT BENEFITS AND DEBTS
All personal property, real estate, financial assets except retirement benefits for service members will be handled identically to civilian divorces and legal separations. Please see our section regarding division of assets and debts in our website.
THE UNIFORMED SERVICES FORMER SPOUSE PROTECTION ACT (USFSPA)
Probably the biggest difference between service members and civilian divorces and legal separations is how retirement accounts are treated.
You may have already heard about the “10/10 rule.” This rule can be a source of misunderstanding because many people belief the marriage needs to be 10 years during 10 years of service in order for the military pension to be divided. That is incorrect and it should be noted that as long as Arizona has jurisdiction, Arizona can and will divide a service member’s military retirement, regardless of the length of the marriage. Courts in foreign nations cannot divide military retirements. The rule merely means that in order for the claiming spouse to receive direct payments from the Defense Finance and Accounting Service (DFAS) there needs to be ten years of marriage during ten years of service. This issue is addressed further below under the section “The Divorce is Done, Now What?”
Therefore even if the spouses have been married less than ten years, the non-service spouse can still receive an equitable portion of the retirement benefits. Remember in Arizona retirement benefits that are earned during the marriage are known as a community asset and as such both spouses are entitled to an equitable share of that asset (usually 50-50). Therefore the retirement benefits earned during the marriage need to be divided even if less than ten years.
The law governing the division of service retirement assets in a divorce and legal separation is the Uniformed Services Former Spouse Protection Act, abbreviated as USFSPA. USFSPA allows state courts to divide military retirement assets pursuant to the state’s divorce laws.
Dividing service retirement can be very complicated, especially when portions of the retirement are earned from service prior to the marriage and some portions were earned from service during the marriage. In this situation the parties need to calculate what portion is eligible to be divided. Other complications include when part of the retirement benefits are converted to disability.
Generally speaking, like any other issue in your divorce or legal separation, you and your spouse can agree as to how to divide the retirement assets. Also, like any other issue in your divorce or legal separation, if you and your spouse do not agree on how to divide the benefits, the issue will have to go to a trial for the judge to make a ruling on how to divide it. For example, perhaps you and your spouse will agree that the service spouse will keep 100% of the pension, and as an offset the service spouse will be responsible for a greater portion of debt and the non-service spouse will receive other assets in lieu of retirement assets.
There are advantages and disadvantages to this method and you should consult with a Phoenix military divorce attorney or financial planner to see if this is a practical solution. The other method is to use a formula to calculate the non-service spouse’s proportion of the retirement asset. Remember that the ex-spouse cannot receive the retirement pay until the retiree applies for it. So it might be important to include time frames in the final divorce order as to when the retiree will apply to receive benefits.
What Part of the Service Retirement is Divisible?
In order to calculate how much the spouse requesting their share of the retirement will be paid, it is important to first calculate the amount of the pension that is actually subject to division or the “disposable retired pay.” The disposable retired pay is the amount remaining after the specific items are deducted from the pension. These deductions may include:
- amounts for debts owed to the United States, such as advanced pay;
- amounts forfeited by/fines assessed against the service member such as those resulting from a court martial in which the member is disciplined for misconduct;
- amounts waived by the service member to receive an enhanced civil service retirement benefit (for example, if the member subsequently becomes a civilian employee of the federal government);
- amounts waived by the service member in exchange for the receipt of disability pay; and
- amounts deducted to fund the cost of a survivor benefit plan.
The fact that a service member can exchange retirement pay for disability pay is a source of complication and can negatively affect the other spouse. It negatively affects the other spouse because before the service member can receive tax-free disability pay from the exchange, they have to agree to give-up a similar amount of retirement pay. Disability pay cannot be divided as part of a divorce. So, when a service member gives up retirement pay in exchange for disability pay, the amount of retirement pay both spouses will receive is reduced.
Even more complicated is when the service member spouse exchanges retirement pay for disability pay after the divorce. This will result in the ex-spouse possibly receiving less than they thought they would receive at the time the divorce was finalized by the Court. There may be potential remedies for the other spouse to resolve the decreased amount resulting from the exchange.
The Divorce is Done, Now What?
One of the ex-spouses should send a copy of the order regarding the pension directly to Defense Finance and Accounting Service (DFAS). This will put DFAS on notice of your right to collect some portion of the military pension. Payments from DFAS are where the importance of the 10/10 rule applies. The USFSPA provides that DFAS will pay the former spouse’s share of the military retirement directly if there were at least 10 years of marriage overlapping 10 years of creditable military service. Therefore Arizona courts can still divided the military retirement for marriages of less than 10 years, but instead of DFAS making the payment, the service member will have to actually physically make the payment to the ex-spouse.
There are specific procedures to follow in order to receive pension pay directly from the DFAS. The former spouse may be entitled to receive the court-ordered pension payments directly from DFAS if all of the following requirements are met:
- the divorce judgment and any separate order dividing the military pension are both final (meaning the time to file an appeal has expired)
- the service member is retired or in the process of retiring, and
- the 10/10 rule has been met.
The USFSPA limits the total amount DFAS can pay pursuant to court orders. DFAS cannot pay one party more than 50% of the member’s disposable retired pay. If DFAS receives more than one court order, for example from the first ex-spouse and then later from a subsequent ex-spouse, or a subsequent child support order, DFAS cannot distribute more than 65% of the member’s disposable retired pay on the combined orders. When the DFAS receives multiple orders, the orders are paid out a first-come first-serve basis. Any additional sum will have to be obtained directly from the obligor (the party required to make the payment)
SURVIVORS BENEFIT PLAN (SBP)
SBP is in essence an annuity that replaces the pension if the pensioned holder passes away. If the ex-spouse does not get a share of the SBP, then the ex-spouse will not get a share of the pension when the pension holder passes away.
SERVICE MEMBERS GROUP LIFE INSURANCE (SGLI)
Like a civilian divorce, the parties can agree to that the obligor (the person ordered to pay) can maintain life insurance to replace spousal maintenance or child support payments that would terminate as a result of the death of the obligor.