Reagen Kulseth

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Divorce (aka Dissolution of Marriage)

The goal of a divorce is to end a marriage and resolve such issues as child decision-making authority, parenting time, child support, spousal maintenance (alimony), property and debt division and attorney's fees and costs. A divorce decree (final judgment) can be based on an agreement between the parties or result from a trial. An agreement is usually less traumatic for you and your children and far less expensive than a trial. Ultimately, most cases are resolved without a trial.

The Divorce Process

The Petition

A divorce begins with the filing of a Petition for Dissolution. This document notifies the court and your spouse that you want to end your marriage. It also lists what you are asking for, such as child decision-making authority, parenting time, child support, spousal maintenance (alimony), property division, attorney's fees and costs.

The Petition must be served on your spouse. The date the petition is served is the date the community nature of your marriage ends. This means that once the Petition is served, the community will no longer exist for purposes of debt and asset acquisition. Any debt incurred by either of you will be your sole and separate debt unless the Court orders otherwise. Any asset acquired as a result of his or her earnings becomes that person's sole and separate property; therefore, it is important to open a new bank account into which any income received after service of the Petition may be deposited. Be sure that the first pay check you deposit into the separate account is payment for work performed after the date of service or you may commingle your separate income with the community income.

Should You File First?

The only benefit to filing first is if your case proceeds to trial. As the Petitioner, you would present your case first and you have the opportunity to respond to your spouse's closing argument. Otherwise, there is no difference between being the Petitioner or the Respondent.

The Waiting Period

By law, there is a 60 day waiting period from the date of service until a marriage can be legally dissolved. This is true even if the parties are in complete agreement. The Legislature mandated this waiting period in the hopes that couples will reconsider and choose to stay married. The date of service is not itself counted in the sixty day waiting period.

The Response

After a Petition is served, the other spouse (Respondent) is entitled to file an opposition to the orders requested, otherwise known as a response. In Arizona, a Respondent must file a response to the Petition for Dissolution within twenty days if (s)he lives in state or thirty days if (s)he lives out of state. Failure to file a timely response will result in the loss of the ability to contest the relief requested in the Petition and the court might give the requesting spouse (Petitioner) everything asked for in the Petition through a default divorce

Temporary (pendente lite) Orders

While a case is pending final orders, either party may request temporary orders from the court. These case-specific rules may address such issues as child support, decision-making authority, parenting time, spousal maintenance, payment of debts, use of the marital residence. The temporary orders are only valid until the court finalizes the divorce and final orders are in place.

Default Judgment

If the Respondent does not file an objection to the Petition for Dissolution, the Petitioner is deemed to have (won) by default and the orders requested in the Petition will be granted by the court.

Discovery

If the opposing party does file a response then everything must be agreed to or litigated at trial before the parties can be divorced.

Prior to or during settlement negotiations, but before trial, each spouse is entitled to receive information about the other, such as income and the identity of all assets and debts known to each party. This process is called discovery. Oftentimes the depth of discovery depends upon the size and value of the estate and the length of the marriage.

There are several different discovery procedures available to the parties. For example, a list of questions known as interrogatories, which require a formal written answer to each question within a stated time limit, may be sent to the other party. Deposition of witnesses and subpoenas may also be used to discover information about the other spouse.

Negotiated Settlement

Most lawyers and judges agree that it is better to resolve a case by agreement than to have a trial in which a judge decides the outcome. A negotiated settlement gives the parties privacy and control as compared to a trial. Although your lawyer may recommend that you accept or reject a particular settlement proposal, the decision to settle is yours. Your lawyer cannot and will not make that decision for you.

Even if the parties cannot come to an agreement on everything, it is important to submit a partially negotiated settlement. For example, Jane and Jeff agree how to divide all of their assets, but their house. They also agree on legal and physical custody of their minor child, but not on Jeff's parenting time. To minimize their expenses at trial, Jane and Jeff should sign a parenting agreement as to custody, but reserve the issue of parenting time for trial. They should also sign a property agreement, which documents all of their agreements regarding property and debt division, but reserves the issue of the marital residence for trial. By doing this, Jane and Jeff have drastically reduced the issues to be decided by the court. They have simplified their litigation by identifying specific issues to be addressed and their lawyer's trial preparation time will be shorter, as will the trial itself.

Trial

Any unresolved issues between the parties must be litigated at trial before the divorce can be granted. Trial is risky, expensive and unpleasant. During trial, each party explains their respective position to the judge. It is explained through witness testimony and documents called exhibits. No lawyer can predict the outcome of a trial because every case is different. It is rarely a good idea to allow a judge, who probably has a viewpoint, temperament and values very different from the parties, to tell a couple how to reorder their lives, divide their income and assets, and dictate when each parent may see their children.

Additionally, a trial does not necessarily mean the case is over. Each party may, within a limited period of time, appeal to a higher court. An appeal adds more time and expense to the divorce process and is hard to win.

Dating During the Dissolution Process

Since Arizona is a no-fault state, generally the court is not concerned with your private life. However, dating someone else may anger your spouse and impede settlement.

How Long Will Your Divorce Take?

By law, you must wait at least 60 days before your divorce is final. How far beyond the 60 days your case lasts depends on a lot of things. Every divorce is different. Factors that can make a difference include the schedules of the parties, the lawyers and the court, the cooperation of witnesses, the volume of discovery, the speed of the appraisers, and the complexity of the case.

Enforcement of Your Decree of Dissolution

If a party fails to comply with the terms and conditions of the Decree, the court can be petitioned to enforce those terms. After a hearing, the judge can put the person in jail or impose a fine as necessary to make the person obey the order. If the party is not paying as ordered, a wage assignment can be put in place.

Children and Divorce

Ordinarily, parents make decisions about their children together, but when parents divorce, the hostility between them often interferes with what is in the best interest of the children. The behavior of parents before and after divorce has a tremendous influence on the emotional adjustment of their children.

  1. Never make negative comments about your spouse in front of the child. Your children need to respect both parents.
  2. Do not use your child as a courier service to deliver messages, money or information. Speak directly to the other parent.
  3. Do not discuss the court proceedings with the child.
  4. Do not ask your child questions about the other parent. The court will generally consider this to be spying.
  5. Don't bring your children to court or to your lawyer's office.
  6. Avoid arguments or confrontations with the other parent while dropping off or picking up the children and at other times when your children are present.
  7. Don't listen in on your children's phone calls with the other parent.
  8. Assure your children they are not to blame for the breakup, and are not being rejected or abandoned by either parent. Make sure they understand that they are still loved by both parents.
  9. If you have an alcohol or drug problem, seek treatment right away. The courts will not penalize you for recognizing a problem and getting help.
  10. If you are the custodial parent and the other parent is not paying child support as ordered, do not tell your children.

For a discussion on child support or child decision-making authority, please visit those specific pages.

What is the Preliminary Injunction?

In every divorce case, a preliminary injunction is issued against both parties. You are not allowed to sell, transfer, encumber (take a loan against) or dissipate (waste) any joint assets except in the ordinary course of business or to pay your reasonable attorney's fees. Joint assets may include property in just one person's name. The injunction also prevents either of you from changing insurance coverage or the beneficiaries of insurance coverage; taking the children out of state without a court order or the other party's permission; and from harassing each other. Violation of the preliminary injunction can result in a finding of contempt of court.

Life Insurance and Divorce

Once the Petition is served, you must maintain all life insurance policies in effect at the time. You cannot change the beneficiaries of any insurance policy without permission of the court. Additionally, most divorce courts require the providing spouse to maintain a life insurance policy of an amount sufficient to cover his child and/or spousal support payments for however long the payments are to be made.

Medical Insurance and Divorce

After service of the Petition, you cannot be removed from the other party's insurance policy until further order of the court. Once the Decree of Dissolution is signed by the court, however, if you rely on your spouse for health insurance, you will be required to obtain your own coverage. If you carry insurance for your spouse, you are permitted to drop him or her from your policy. For the uninsured former spouse, COBRA coverage may be available if he or she was previously covered by his or her spouse's plan. If COBRA is available, you are guaranteed health insurance for the same premium for thirty-six months. After that time, he or she must acquire an individual policy.

Considerations if You Own Real Estate

If you and your spouse own a home, there are several things to be considered before deciding how to dispose of the property.

The easiest solution may be to sell the house and split the equity. Many couples choose this option when neither spouse wants the house or cannot afford the liens on the home by them self. In this case, equity generally means the fair market value of the home minus the pay off amounts of any mortgages, the realtor and closing costs, and any community debt, such as credit cards.

If one party wants to keep the house, (s)he must buy out the other spouse. It will also require that the person keeping the home refinance the mortgage into his/her name alone. The person keeping the home is not usually permitted to simply assume the existing mortgage because the ex-spouse will still be financially responsible for the loan. The spouse being bought out of the residence is entitled to one-half the equity in the home. Valuations can get messy as couples often disagree over both home values and their respective shares.

If you transfer your home to your spouse incident to your divorce, you generally have no gain or loss to report for tax purposes. This is true even if you receive cash or other consideration for the home. The transfer rule does not apply if your spouse or former spouse is a nonresident alien. In that case, you generally will have a gain or loss to report.

In rare occasions, couples may agree to do nothing. The spouse moving out of the residence can agree to wait a certain number of years before the house is sold. This often coincides with the emancipation of the youngest child. This arrangement, however, is fraught with complications. For example, who pays for any major repairs? Most lawyers advise against entering into this kind of agreement.

Hypothetical Costs Associated with Future Sale of the Property Cannot Be Deducted From the Equity.

It is generally considered inequitable to reduce one party's share of the community property by anticipated costs that are expected to be incurred in the near future. Accordingly, hypothetical costs associated with the sale of property cannot be deducted from the share of the equity awarded to the spouse not receiving the property. In the absence of evidence that a sale is likely to occur in the near future, it is speculative to allow a deduction of the costs of a hypothetical sale from the share of the equity awarded to the spouse not receiving the property. The expenses of a future sale of an asset are uncertain in both occurrence and amount. For example, the property owner may die and thus never sell the asset. In any event, even if the sale does take place in the future, unless the sale is imminent, there is no reasonable basis upon which to predict the amount of expenses related to the sale.

Even if the evidence demonstrates that a sale of the property is imminent, there must be competent evidence upon which a finding can be made of the anticipated costs of sale. If the trial court has not ordered that the property be sold and the evidence does not demonstrate that a sale is imminent, the anticipated costs of sale generally should not be deducted from the parties' shares of community equity.

Calculating the Community Interest in a Pre-Owned Marital Residence

If a spouse owed a home prior to the marriage and there was a mortgage on the property at the time of the marriage, the courts have developed a formula for apportioning the value of the home to determine the spouse's separate interest and the community interest of the home's increase inequity during the marriage. The calculation is different for cases in which the mortgage still exists on the property and for which the mortgage was paid off during the marriage. It does not matter which spouse wrote the mortgage checks each month because earnings by either party during the marriage are community property.

Sale of Jointly-Owned Property

If you and your spouse sell jointly owned property, such as a house, each of you must report your share of the recognized gain or loss on your income tax return for the year of the sale.

Social Security Benefits

Social Security bears many characteristics of a pension and would ordinarily be considered community property under state law principles. Federal law, however, prohibits such benefits from being subject to "execution, levy, attachment, garnishment, or other legal process" and declares that they are not "transferable or assignable." 42 U.S.C. 407(a). This provision has generally been interpreted to prevent Social Security from being divided by state courts at divorce and Arizona views Social Security as the separate property of the participating spouse and no offsetting award is allowed. Luna v. Luna, 125 Ariz. 120, 608 P.2d 57 (Ariz. App., 1979).

Although a spouse cannot obtain any portion of her husband's Social Security benefits, (s)he may receive Social Security benefits based either upon his or her own contributions or possibly as an ex-spouse of a contributor.

If a divorced spouse was married for 10 years or more, (s)he can collect either 50% of the value of the ex-spouse's benefit, or 100% of his or her own benefit, whichever is greater. The divorced spouse must be at least 62 years of age, unmarried, and must have been divorced for at least two years before he or she can start collecting from the contributing ex-spouse, unless the ex-spouse is at least 62 years old and already receiving benefits. There is no reduction in benefits for the primary contributor even though the ex-spouse receives the value of a percentage of his or her benefits.

If the divorced spouse remarries, he or she is no longer eligible for a percentage of the benefits from the previous ex-spouse. If the remarriage terminates, the divorced spouse once again becomes eligible for benefits from the previous ex-spouse.

If the contributing spouse is deceased, the surviving ex-spouse can collect benefits at age 60 as long as he or she has not remarried.

Retirement Plans

Defined Benefit v. Defined Contribution Plans

Retirement plans fall into two overall categories: defined contribution plans and defined benefit plans.

A defined-benefit plan, also called a pension, is a plan that pays you a specific amount of money, either monthly or in a lump sum, when you become eligible to retire. A formula based on how long you worked for the company and how much you were paid is needed to determine the value( of such plans.

A defined contribution plan does not pay a specific benefit when you retire, but allows you to save money in a tax-deferred account such as an IRA, 401(K) or 403(B) plan. Such plans have readily known values.

Calculating the Community Interest in a Retirement Plan

  1. Defined Contribution Plans

    Retirement plans, if contributed to during the marriage, are divisible community property even if the member spouse does not retire for decades after the parties divorce. The community interest in a retirement account depends on when the member spouse first started to contribute to the plan and whether contributions were made during the marriage.

    Calculating the community interest in a retirement account depends on the type of account being considered. For example, defined contribution plans, such as IRA's, Thrift Savings Plans and 401(K)(s, have a known value: the balance in the account. The non-member spouse is entitled to 50% of the value of the member spouse's contributions to these kinds of plans made during the marriage.

    For example, Jane has a 401(K) with a balance of $5,000 when she marries John. Jane does not contribute to that account during the marriage, but it increases in value to $10,000 by the time the parties divorce. John is only entitled to 50% of the value of the contributions Jane made to the account during the marriage, which is zero.

    If Jane had contributed $10,000 to the 401(K) during the marriage and the 401(K) has a value at the time of divorce of $35,000, the determination of the community's interest therein is more complicated. The separate property interest (the initial $5,000) will have experienced its own gains and losses from market fluctuations over the years. The funds paid into the 401(K) during the marriage will have experienced their own market fluctuations. In the end, the 401(K) has a separate property value and a community interest value.

    In this example, the separate property interest, which is Jane's sole and separate property, may be worth $20,000, and the community interest, which is divided equally between the parties, is $12,000.

    If Jane had not contributed to the account until after the date of marriage, then the entire balance is community property and the finds therein are divided equally.
     
  2. Defined Benefit Plans

    The determination of the community interest in a defined benefit plan is a bit more complicated. Generally, the community interest in a defined benefit plan (pension) is determined by the following calculation:

    Number of month the parties were married while the member spouse contributed to the plan ( the total number of months the member spouse pays into the retirement plan by the time (s)he is eligible to retire.

    For example, John and Mary married in January of 2005. A petition for divorce was served on Mary in January of 2010. The parties were married for five years, or 60 months.

    John was employed by TEP in January of 2004 and began contributing to his pension that same month. John is eligible to retire on January 2024 after 20 years of service. John will have contributed to his pension for 20 years, or 240 months.

    The contributions John made to his pension both before and after his marriage to Mary are his sole and separate property and Mary is not entitled to receive any portion of the value of those contributions. To calculate the community interest in the pension, the mathematical formula above is applied:

    60 months of marriage divided by 240 months of total contributions = .25

    .25 = 25% of the monthly pension benefit. Mary is only entitled to one-half of the community interest in the monthly pension or 12.5% thereof. If John's monthly pension is $2,000, Mary is entitled to $250 per month.

    Many spouse's believe they are entitled to 50% of the member spouse's pension if the member started to contribute to the pension during the marriage. If the member spouse is retired or retiring at that time, this may be true, but consider the following example.

    John and Mary still married in January of 2005. Mary was hired by Raytheon in January of 2007. A petition for divorce was still served on Mary in January of 2010 and the parties were still married for five years, or 60 months. Often under these circumstances, the non-member spouse assumes he is entitled to 50% of Mary's retirement benefit, but that is generally incorrect.

    If Mary is not eligible to collect retirement until January of 2027, the mathematical formula is:

    36 months of contributions while married (2007-2010) divided by 240 months of total contributions made = 15%.

    John is only entitled to one-half of that community interest in the plan of 7.5% by the time Mary retires.

Military Retirement

Eligibility for Military Retirement

Regular active duty members of the military service qualify for a monthly pension after 20 years of service regardless of age. There is no vesting schedule for a military pension. Generally speaking, a person cannot receive a military pension unless they have served the entire twenty years or are otherwise retired, such as medical retirement. A person who has served for twenty years can start collecting a pension regardless of his or her age.

Military reserve members earn pensions, but cannot be paid until they reach the age of 60. The value of the reserve pension is based on the Point System. A reservist receives one point credit for each day of service. He or she also has to have at least 20 years of service, but a year could consist of as little as 3 weeks in the summer and one weekend per month each year.

If the military member is disabled, he or she will be eligible for disability pay. If the military member is terminated involuntarily due to a reduction in force, he will be eligible for a lump-sum payment, the size of which depends on the number of years served. If the military member is voluntarily terminated because of a reduction in force, he will receive an annuity for a number of years, again depending on the number of years served on active duty.

Uniformed Services Former Spouses Protection Act of 1982 (USFSPA)

The USFSPA allows a divorce court to award a share of a member's pay as marital property. In Arizona, a portion of the military spouse's retired pay will be considered community property, and the non-military spouse will be entitled to one-half of the community's portion. The portion will generally be based on the number of years of marriage during which the retired pay was earned, divided by the total years of service. If the spouses were married for at least ten years while the member was on active duty, the non-military spouse will qualify for direct enforcement, which means that his or her portion of the retired pay will be paid to him or her directly by the military finance office DFAS.

The 10 Year Rule

Many spouses believe that they are not entitled to the military spouse's retirement pay unless they have been married for ten years. This is not correct!

When there are ten years of marriage that overlap with ten years of service, the non-service member spouse is entitled to receive payment of his/her interest in the military retired pay directly from DFAS. If there is no ten years of marriage overlapping with 10 years of service, the non-military spouse is still entitled to her portion of the monthly pension benefit, but the military spouse will have to personally pay the non-military spouse his/her portion of the pension each and every month.

Medical, Commissary and Exchange Privileges

Full medical, commissary, and exchange privileges are available to an ex-spouse if the military member served 20 years and the spouses were married for 20 years while the member was on active duty. If the military member served 20 years and the spouses were married for 20 years, but the member was on active duty only 15 to 19 of those years during the marriage, the ex-spouse will be entitled only to medical care for a limited period of time. After that limited time, the spouse will have 90 days to enroll in a group health plan established by the Department of Defense. If he or she remarries, all privileges are lost. A divorced spouse is not entitled to medical, commissary, or exchange privileges if the marriage lasted less than 20 years or the military spouse served fewer than 20 years.

Former Spouse Survivor Benefit Plan

The Survivor Benefit Plan is a plan whereby a portion of a military retiree's pay is paid to a named beneficiary. Without this plan, all retirement pay would stop at the death of the retired military member. The maximum amount of coverage is for 55% of the member's gross retired pay.

A spouse generally loses eligibility for the SBP upon divorce; however, the divorced/former spouse may receive a survivorship annuity if "former spouse coverage" is elected by the military member. When coverage is ordered by a court, and the member then fails or refuses to make the required election, that member shall be deemed to have made such an election if the service finance center receives a written request from the former spouse asking that the election be made.

If the former spouse remarries before the age of 55, coverage is suspended. If the subsequent marriage is terminated by death or divorce, coverage is resumed. As long as the former spouse is alive, the member may not name a current spouse as a beneficiary unless the former spouse waives the benefit in writing.

Military Retirement and Disability Benefits

There are two different systems of military disability benefits:

1. Military disability retired pay is for members who are sufficiently disabled that they cannot perform their assigned military duties. Compensation is calculated based upon service time, rank (basic pay rate), and disability rating. If a servicemember has sufficient creditable military service, (s)he is placed on the (disability retired list( and begins to draw disability retired pay. This system is managed by the Department of Defense (DoD).

2. The retirement system is managed by the Department of Veterans Affairs (VA). Instead of measuring the ability of the servicemember to perform military duties, the VA compensation system measures the extent of disability and its effect on employability. VA disability ratings are based entirely upon the severity of the injury and do not consider years of service or rank.

This system covers injuries or illness that are not necessarily combat related, but only service connected. It covers injuries or diseases that happened while on active duty or were made worse by active duty.

Disability ratings range from 0% to 100%. The benefits paid by both systems are tax-free to the servicemember.

Prior to July of 2014, there was a lot of confusion as to whether or not a former or current, but divorcing spouse could be compensated for any portion of the service members disability pay. The law used to require the servicemember to indemnify the (former) spouse for her portion of the servicemember's disability pay from so other source of income; thereby shirting the issue of the non-divisibility of disability pay.

In order to protect a former spouse's income from a servicemembers unilateral decision to waive a portion of his military retired pay in favor of disability, Arizona courts circumvented the federal law that states disability benefits are not divisible as community property. In Merrill v. Merrill, 284 P.3d 880 (2012), Arizona determined that a spouse cannot defeat the nonemployee spouse's interest in retirement benefits already awarded to her by invoking a condition wholly within his control (i.e. requesting a disability rating). The servicemember was ordered to indemnify (make-up the difference to) the former spouse even if it requires the use of the servicemember's disability pay to do it. The court simply orderd the servicemember to make-up the difference and the servicemember is free to do so with any income or asset at his disposal.

That has changed.

The law now specifically prohibits indemnification. A.R.S. 25-318.01 states that, in making a disposition of property, a court shall not do any of the following:

1. Consider any federal disability benefits awarded to a veteran for service-connected disabilities pursuant to 10 United States Code section 1413a or 38 United States Code chapter 11.

2. Indemnify the veteran's spouse or former spouse for any prejudgment or post judgment waiver or reduction in military retired or retainer pay related to receipt of the disability benefits.

3. Award any other income or property of the veteran to the veteran's spouse or former spouse for any prejudgment or postjudgment waiver or reduction in military retired or retainer pay related to receipt of the disability benefits.

Now, even if a couple has been married for 25 years and the servicemember's spouse has not been employed for 20 years, if the servicemembers entire military pension is converted or paid as disability, the spouse will receive no portion of that benefit.

Military Disability Benefits and Spousal Maintenance

The law regarding the inclusion of disability pay as income to the servicemember for the purpose of determining spousal maintenance also changed in July of 2014. Pursuant to A.R.S. 25-530, in determining whether to award spousal maintenance or the amount of any award of spousal maintenance, the court shall not consider any federal disability benefits awarded to the other spouse for service-connected disabilities pursuant to 10 United States Code section 1413a or 38 United States Code chapter 11.

Military disability pay, however, is considered income for purposes of calculating a parent's child support obligation.

Retirement and Social Security

In situations where one spouse was enrolled in the Civil Service Retirement System (CSRS), which precludes participation in Social Security, and the other spouse participated in Social Security, the division of the CSRS benefit becomes convoluted.

For example, David is a police officer enrolled in the Public Safety Retirement System, which means he is not contributing to Social Security and will not receive Social Security benefits upon retirement. Tina is employed and not only has a pension, but Social Security is being taken out of her pay checks. Upon her retirement, she will receive her employment pension and Social Security benefits. Social Security benefits cannot be divided between spouses.

Relying on this concept of fairness, the Arizona courts agree that to the extent individuals with Social Security benefits enjoy an exemption of that 'asset' from equitable distribution, those individuals participating in the CSRS must be similarly positioned. In these cases, a present value, measured as of the date of dissolution, should be placed on the Social Security Benefits the spouse would have received had (s)he participated in that system during the marriage. This necessarily will require a reconstruction of his or her wages. The Social Security calculation can then be deducted from the present value of the spouse's CSRS pension on the date of dissolution. The remainder, if any, is what may be divided as community property.

Last Updated: 01/23/2015