Military divorces face unique federal regulations alongside Arizona state law. The Servicemembers Civil Relief Act (SCRA) and the Uniformed Services Former Spouses' Protection Act (USFSPA) play major roles.
Military Divorce in Arizona: Comprehensive Legal Guide
Arizona is home to multiple major military installations, including Luke Air Force Base in Glendale, Davis-Monthan Air Force Base in Tucson, Fort Huachuca near Sierra Vista, Marine Corps Air Station Yuma, and numerous Arizona National Guard and Reserve units throughout the state. With tens of thousands of active-duty service members, veterans, and military families calling Arizona home, military divorces represent a significant portion of family law cases in Maricopa County Superior Court.
Military divorces involve a complex intersection of federal laws, including the Uniformed Services Former Spouses' Protection Act (USFSPA), the Servicemembers Civil Relief Act (SCRA), and military regulations, alongside Arizona state family law. These federal requirements create unique procedural requirements, benefit considerations, and property division challenges that require specialized legal knowledge to navigate successfully.
Arizona Residency and Jurisdiction for Military Divorce
Military families often face unique jurisdictional questions due to frequent relocations and the distinction between legal residence (domicile), home of record, and duty station:
Establishing Arizona Jurisdiction
90-day residency requirement: At least one spouse must have resided in Arizona for 90 days before filing for divorce
Service member stationed in Arizona: A service member stationed in Arizona can file for divorce here, even if their legal residence is another state
Military spouse residency: A spouse accompanying a service member to Arizona can establish residency for divorce purposes
Multiple state eligibility: Military families may have jurisdiction in several states (domicile, service member's home of record, current duty station), allowing strategic choice of venue
Home of Record vs. Legal Residence vs. Duty Station
Home of record: State recorded for administrative purposes when service member entered military; used for travel pay calculations
Legal residence (domicile): State where service member considers their permanent home and intends to return; determines state income tax obligations
Duty station: Current assignment location; may or may not be same as legal residence
Jurisdiction implications: Different states may apply different laws to property division, support, and benefits
Choice of Venue Considerations
When multiple states have jurisdiction, consider:
Community property vs. equitable distribution: Arizona's 50/50 community property division may be more or less favorable than other states' equitable distribution
Military retirement division laws: Some states have different rules about dividing military retirement
Legal decision-making and parenting time jurisdiction: UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) governs which state has authority over legal decision-making and parenting time
Convenience: Where witnesses, evidence, and parties are located
Familiarity: Local court procedures and judicial attitudes toward military cases
TRICARE Healthcare Benefits in Military Divorce
TRICARE provides healthcare coverage for military families, and divorce significantly impacts eligibility:
TRICARE Eligibility Rules
During divorce: Spouse remains eligible for TRICARE as long as legally married
After divorce (20/20/20): Full TRICARE coverage continues if 20/20/20 requirements met
After divorce (20/20/15): One year transitional coverage
After divorce (not meeting rules): Coverage terminates on date of divorce; may purchase CHCBP
Children: Children remain eligible for TRICARE coverage regardless of custody arrangement until age 21 (or 23 if full-time student)
Planning for Healthcare Transition
Evaluate 20/20/20 eligibility: If close to thresholds, delaying divorce may preserve benefits
CHCBP enrollment deadline: Must enroll within 60 days of losing TRICARE eligibility
Employer coverage: Consider timing divorce with open enrollment period for employer health insurance
ACA marketplace: Divorce creates special enrollment period
Negotiate coverage: Some settlement agreements require service member to maintain coverage for former spouse through CHCBP payments
Thrift Savings Plan (TSP) Division in Military Divorce
The Thrift Savings Plan (TSP) is the military equivalent of a 401(k) and is divided separately from military pension:
TSP Division Process
Community property: TSP contributions and earnings during marriage are community property in Arizona
Separate from pension: TSP is a separate asset from military retired pay; must be valued and divided separately
Court order required: Division requires a Retirement Benefits Court Order (RBCO) or similar qualifying order
TSP-specific requirements: Order must meet TSP's specific language requirements for acceptance
Types of TSP Awards
Specific dollar amount: Award fixed dollar amount from account (e.g., $50,000)
Percentage of account: Award percentage of total account as of certain date
Formula: Pro rata share based on marriage duration (marital months ÷ total contribution months)
TSP Distribution Options for Former Spouse
Transfer to own TSP: Former spouse with their own TSP account can receive direct transfer
Transfer to IRA: Can roll into traditional IRA to maintain tax-deferred status
Cash distribution: Can receive cash (taxable, and potentially subject to 10% penalty if under 59½)
Combination: Can split between transfer and cash distribution
Tax Considerations
Tax-free transfer: Direct transfer to IRA or TSP is not a taxable event
Future taxation: Distributions taxed as ordinary income when withdrawn
Early withdrawal penalty: Generally 10% penalty for distributions before age 59½, with some divorce-related exceptions
Roth TSP: Different tax treatment for Roth contributions
Survivor Benefit Plan (SBP) in Military Divorce
The Survivor Benefit Plan is military's version of survivor insurance that provides continuing income to designated beneficiaries if the retiree dies:
SBP Basics
Purpose: Provides continuing income to survivors after service member's death
Benefit amount: Up to 55% of retired pay
Cost: 6.5% of retired pay (premium deducted from retired pay)
Tax treatment: Premiums reduce taxable income; benefits are taxable income to survivor
Former Spouse SBP Coverage
Arizona courts can order service members to provide SBP coverage for former spouses:
Court can require election: Divorce decree can require service member to elect former spouse SBP coverage
Protects retirement division: Without SBP, former spouse's retirement share ends at service member's death
Deemed election: If decree requires SBP but service member fails to elect, court can request "deemed election' from DFAS
Cost allocation: Decree should specify who pays the premium (typically deducted from service member's share)
SBP Election Deadlines
Within one year of divorce: Former spouse coverage must be elected or deemed within one year of divorce decree
Failure to elect: Missing deadline may permanently forfeit SBP option
Documentation required: DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) plus court order
Strategic Considerations
Cost-benefit analysis: Weigh 6.5% lifetime premium cost against value of continuing retirement share
Life insurance alternative: Some couples use private life insurance instead of SBP
Age and health factors: Consider life expectancies when evaluating SBP value
Remarriage impact: Former spouse coverage may terminate if former spouse remarries before age 55
VA Disability Compensation and Military Divorce
Veterans Affairs disability compensation creates one of the most complex and contentious issues in military divorce because of its impact on divisible retirement:
VA Disability is Not Divisible Property
Under federal law, VA disability compensation cannot be divided as property:
Federal preemption: 38 U.S.C. § 5301 exempts VA disability from attachment, levy, or seizure
Supreme Court ruling: In Mansell v. Mansell (1989), U.S. Supreme Court held that USFSPA does not authorize state courts to divide VA disability pay
Waiver issue: When service members waive retirement pay to receive VA disability, the divisible retirement amount decreases
Impact of VA Disability Waiver on Former Spouse
The "disability offset' problem:
Dollar-for-dollar waiver: For most retirees, each dollar of VA disability reduces retired pay by one dollar
Former spouse loses: If decree awards 30% of retired pay, and service member later gets VA disability, the former spouse's payment decreases
Post-divorce claims: Service members sometimes file VA disability claims after divorce, reducing former spouse's share
CRDP and CRSC: Partial Solutions
Two programs allow some veterans to receive both retirement and disability:
Concurrent Retirement and Disability Pay (CRDP): Veterans with 50%+ disability rating can receive both full retired pay AND VA disability (phased in over several years)
Combat-Related Special Compensation (CRSC): Tax-free compensation for disabilities related to combat; offsets VA waiver
Impact on former spouse: CRDP restores divisible retired pay; CRSC does not (CRSC is not divisible)
Indemnification Clauses
To protect former spouses from VA disability offset, Arizona courts may include indemnification provisions:
Indemnification clause: Requires service member to pay former spouse same amount regardless of VA disability waiver
Enforcement challenge: Payment must come from service member's own funds (not DFAS)
Not always enforceable: Some courts have found indemnification clauses impermissible division of VA disability
Arizona approach: Arizona courts generally include indemnification clauses, but enforcement remains challenging
Legal Decision-Making and Military Deployment
Arizona law provides specific protections for service member parents facing custody issues during deployment:
Deployment Cannot Be Sole Basis for Custody Modification
Arizona follows the principle that deployment alone should not change custody:
Temporary nature: Court recognizes deployment is temporary military duty, not permanent change
Best interests standard: Deployment facts considered, but cannot be sole basis for modification
Post-deployment restoration: Custody arrangements should return to normal after deployment
Federal protection: Many states have adopted similar protections under SCRA amendments
Family Care Plans
Military regulations require all service members with dependents to have Family Care Plans:
Mandatory requirement: Single parents and dual-military couples must have approved plan
Designates caregivers: Identifies who will care for children during deployment
Must be realistic: Named caregivers must be actually available and capable
Court can consider: Family Care Plan may be evidence in custody determinations
Delegation of Parenting Time
Arizona allows service members to delegate parenting time during deployment:
Temporary delegation: Service member can designate family member to exercise parenting time
Typically to grandparents: Often service member's parents exercise time during deployment
Must be in decree: Delegation provisions should be included in parenting plan
Limited to deployment: Delegation only during actual deployment, not permanent transfer
Virtual Visitation
Technology enables maintaining parent-child relationships during deployment:
Video calls: FaceTime, Skype, Zoom calls from deployment location
Regular schedule: Parenting plan should include virtual visitation schedule
Cooperation required: Custodial parent must facilitate virtual contact
Time zone considerations: Schedule accommodating time differences
Expedited Hearings
Pre-deployment motions: Courts can expedite hearings when deployment is imminent
Emergency custody orders: Available when deployment creates urgent custody issues
Temporary orders: Courts can issue temporary orders for deployment period
Military Income and Support Calculations
Military compensation includes many components that affect child support and spousal maintenance calculations:
Basic Pay
Primary income: Base military salary based on rank and years of service
Always included: Basic pay is always counted as income for support calculations
Published tables: Annual military pay tables show exact amounts by rank/years
Basic Allowance for Housing (BAH)
Location-based: Tax-free allowance varying by duty station location and dependency status
Arizona treatment: BAH is counted as income for child support calculations
With/without dependents: BAH rate depends on whether service member has dependents; divorce may change rate
Significant amount: In Phoenix metro area, BAH can be $2,000-3,000+ per month
Basic Allowance for Subsistence (BAS)
Food allowance: Monthly allowance for food (currently approximately $400-450/month)
Generally included: BAS typically counted as income for support purposes
Officer vs. enlisted: Different amounts for officers and enlisted
Legal assistance center: U.S. Army Installation legal services
Services: Family law consultations, legal document preparation
Marine Corps Air Station Yuma
Station legal services: Legal assistance for Marines and families
Services: Family law guidance, powers of attorney, notary
Additional Resources
Military OneSource: Free confidential support including legal consultations (1-800-342-9647)
ABA Military Pro Bono Project: Free legal assistance from volunteer civilian attorneys
Arizona State Bar Military Legal Assistance: Reduced-fee referrals for military families
The Legal Process
SCRA Compliance Review
Determine if the Servicemembers Civil Relief Act applies. Active-duty members may request stays; special procedures required for default judgments.
File Petition and Service
File divorce petition in Arizona. Service on active-duty members may require special procedures and extended response times under SCRA.
Common Questions
How is military retirement divided in an Arizona divorce?
Military retirement is community property in Arizona if earned during the marriage. The USFSPA allows courts to divide disposable retired pay up to 50%. Direct payment from DFAS requires the 10/10 rule (10 years of marriage overlapping 10 years of military service). Otherwise, the service member must pay the former spouse directly.
What is the 20/20/20 rule for military divorce?
The 20/20/20 rule entitles a former military spouse to full military benefits (TRICARE, commissary, exchange) if: the marriage lasted at least 20 years, the service member had at least 20 years of creditable service, and there was at least 20 years of overlap between marriage and service.
Can a deployed service member be divorced in Arizona?
Yes, but the Servicemembers Civil Relief Act (SCRA) provides protections. Active-duty service members can request a stay of proceedings during deployment, and the court cannot enter a default judgment without proper procedures. These protections ensure service members aren't disadvantaged while serving.
Anthony F. Paradise, Esq.
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