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Why Are Military Divorces Uniquely Challenging?
Contemplating the logistical details of a divorce can often feel overwhelming. When one or both spouses are members of the Armed Forces, even more topics must be considered during the marriage dissolution process. A skilled Arizona divorce lawyer can evaluate your situation, help you determine how various military benefits will be handled during the divorce, and advocate for your rights so you can feel confident that you are receiving equitable treatment in accordance with state and federal laws.
Is Military Retirement Considered Community Property in an Arizona Divorce?
Arizona is a community property state. Under state law, most property acquired during the marriage is deemed to be jointly owned by both spouses. While there are some exceptions for gifts or inheritances, the vast majority of assets a couple owns at the time of the divorce will be considered community property. During the divorce, the court will attempt to divide the community property approximately equally if the couple has not already negotiated a fair agreement.
Like pensions and other civilian retirement funds, the portion of a spouse’s military retirement earned while the couple was married and contributions to their Thrift Savings Plan are included in community property and are subject to division. It’s vital to discuss your case with a knowledgeable attorney to understand how your divorce could impact your military retirement payments, as the calculations used by the court are quite complex. The division of retirement funds can be influenced by many factors, including the length of time the service member was stationed in non-community property states, their anticipated rank at the time of retirement, and whether they are currently in active service or have already retired at the time of the divorce.
How Does the 10/10 Rule Affect the Division of Retirement Benefits?
A common misunderstanding of the “10/10 Rule” is that military retirement funds will not be divided as marital property unless ten years of the marriage overlap with ten years of military service. In reality, the length of the marriage and the years of service do not impact whether or not Arizona will divide military retirement benefits between spouses. This division will occur regardless.
What the 10/10 Rule does influence is how these payments are distributed. If the couple was married for ten years while the service member was on active duty, then the Defense Finance and Accounting Service (DFAS) will send separate monthly checks to the spouses for their respective shares of the retirement benefits. If the 10/10 Rule does not apply, the veteran will receive the full payment amount and is responsible for paying the correct share to their former spouse.
Is VA Disability Compensation Divisible in a Divorce?
Unlike general military retirement benefits, VA disability pay, incurred during active duty service, is personal to the individual and is not considered community property. This means the value of the veteran’s disability payments may impact the portion of retirement benefits the former spouse receives. At the time of retirement, some veterans may be given the choice to opt for a larger portion of disability pay by waiving an equal amount of their disposable retirement pay. Many veterans will take the increased disability pay because it is, in most instances, not considered taxable income and is not subject to divorce decrees.
Under ARS § 25-318.01, the court is prohibited from considering the value of current or potential VA disability benefits when making property division rulings. The court also cannot award additional property to the spouse to balance out any reduction in retirement benefits that may occur if the veteran becomes eligible for disability benefits. An experienced divorce attorney can help you determine how these laws could affect your case.
Will a Former Military Spouse Be Able to Retain Health Care Following the Divorce?
TRICARE coverage is provided to military members and their families, but a divorce can impact coverage eligibility for civilian ex-spouses. The “20/20/20 Rule” determines whether a non-military former spouse can receive their own TRICARE insurance coverage. If the couple was married for 20+ years, the military spouse served for at least 20 years, and those two periods overlapped for at least 20 years, the non-military spouse will be able to keep their own TRICARE coverage following the divorce as long as they do not remarry. Under the “20/20/15 Rule,” if these periods only overlap for at least 15 years, then the civilian spouse is eligible to keep TRICARE coverage for a year following the divorce.
What Other Military Benefits May Be Affected By an Arizona Divorce?
Military families may also receive benefits from other programs. However, a divorce frequently terminates eligibility for the non-military spouse, so it is essential to plan ahead and understand the effects of these changes. The civilian spouse will likely lose their base and commissary benefits after the split is finalized unless they qualify to retain these benefits under the 20/20/20 Rule explained above. Another complication in the military divorce process involves dividing the marital home. Many military couples purchase their house using a VA home loan because it offers competitive interest rates, no down payment, and other benefits for qualifying service members. However, VA loans have strict rules regarding the occupancy and sale of the house, which can add complexity to divorce agreement negotiations.
How Can Our Firm Provide Assistance During Your Arizona Military Divorce?
In addition to common divorce topics, including child support, parenting time, spousal maintenance, and property division, military couples may need to address additional issues when attempting to end their marriage. This process can be complicated by the realities of military life, including deployment and frequent relocation. Our experienced lawyers at The Sampair Group can guide you through every step of your military divorce, explain the relevant laws, and negotiate for the best possible outcome so you can confidently embark on the next chapter of your life. To schedule your case evaluation, contact our Glendale office today at 623-294-2498.
