How Federal Law Protects Active-Duty Service Members

Divorces and related legal proceedings such as requests for changes in child support or custody provisions are primarily governed by the laws of the state in which the divorce or other action is filed. However, several federal laws can impact how and when state courts may proceed when a military spouse is involved in a military divorce.

The Servicemembers Civil Relief Act (SCRA) was enacted in 2003 to update a law originally passed in 1940. The original intent of the law was to provide legal protections for persons serving on active duty in the military and to prevent legal matters from becoming distractions.

The SCRA provides a variety of protections to service members including restricting evictions, imposing a cap on interest rates for debts acquired before military service and requiring that certain conditions be met to terminate auto and other property leases. The law also limits what actions may take place in civil lawsuits.

When a plaintiff files a civil lawsuit and can prove the defendant was served, if the defendant refuses to respond to the suit within a specific time, the plaintiff can often obtain a default judgment. The court will generally grant everything the plaintiff requested in the suit. The SCRA prevents this from happening under specific circumstances if the defendant is serving on active duty in the military.

The SCRA prevents a civilian spouse from filing a divorce action and obtaining a default judgment while the military spouse is on active duty if certain conditions are met. The SCRA states that when a defendant has not entered an appearance in a civil suit and it appears that person is serving in the military, a court may not enter a default judgment against the defendant until after it has appointed an attorney to represent the service member. The law allows the court to postpone legal proceedings for at least 90 days.

Similarly, the law prevents a civilian spouse from obtaining a permanent change in child custody and visitation orders by default either while a divorce is pending or as a post-divorce modification action.

In theory, the SCRA could be used to put a divorce or lawsuit on hold for the duration of the military member's service, plus an additional 60 days. Generally, courts will delay proceedings for at least 90 days at the request of the servicemember or that person's attorney. Even without a request, the court may choose on its own to delay proceedings.

However, obtaining an extended delay is not automatically granted simply because a person is serving in the military. A judge must find that the military person's ability to defend or pursue an action is "materially affected" by his or her military duties.

An active-duty service member may be deployed thousands of miles away in a foreign country and unable to answer a lawsuit or even make a formal written appearance. Under those circumstances, a court would likely find that military service materially affects that person's ability to appear in court.

Most military members usually cannot show that they are materially affected due to their service when a divorce action is filed against them. For example, if spouses are living in the U.S. either on base or near each other, there often should be no reason to delay divorce proceedings. Similarly, if the military spouse has been temporarily relocated within the U.S. but has accumulated leave time, courts will likely minimize any delay.

If a service member has received notice of a divorce or other legal action, they must usually at least provide a letter to the court requesting a delay. The letter should explain how military service affects the ability to appear in court and provide a date when that person will be able to appear. A letter from a superior officer might also be included stating that the service member's duties prevent appearing in court and that leave is not authorized at the current time.

Extended or repeated delays can be frustrating for a civilian spouse who is seeking a military divorce or a change in child support or custody. However, the protections under the SCRA do not mean a divorce can never be granted or that the military member will never be required to appear in court. The SCRA may delay litigation, but it does not cancel it.

Even if a judge delays legal proceedings until a service member can appear, courts can still issue temporary orders. Courts will often balance the best interests of a child against SCRA provisions and enter temporary custody orders even if the military parent is unavailable. However, permanent custody orders would not be considered until the military parent could appear in court.

If a civilian spouse files for divorce, at some point in the proceeding he or she must verify the military status of the other spouse and whether the SCRA applies. Proof of non-military status can often be obtained by searching the database of the Defense Manpower Data Center. The plaintiff typically completes and files an affidavit stating they have exercised due diligence to determine the defendant's military status.

Service members can waive their rights under the SCRA. For example, spouses filing jointly for an uncontested divorce implicitly waive any SCRA considerations. Waivers must be in writing and signed during or after the service member's period of military service. Any waiver of SCRA rights signed before a person enters the military is invalid.

Most states have also enacted laws that parallel or provide additional protections for military members involved in family law disputes. Common provisions extend SCRA protections to state National Guard members, prevent the entry of orders making permanent changes in custody provisions and prohibit using current or potential deployments as the sole basis for a change in custody.

The SCRA and related state laws can become complicated. The effect of these laws largely depends on the specific circumstances of the military member involved. When dealing with a military spouse or ex-spouse regarding family law matters, consultation with an attorney who has experience handling military divorces is recommended. If you have a military divorce, contact the Law Offices of Peter Van Aulen at (201) 845-7400 for a free initial consultation.