If you are a service member, or the spouse of one, and you are contemplating divorce, it is important to understand how a military divorce can differ from a divorce involving only civilians. Specifically, Fort Worth military divorce attorney Jon Boyd explains how the Servicemembers Civil Relief Act (SCRA) could impact your military divorce.
As far back as the Civil War, America has had special laws protecting the legal rights of members of the armed services because they are unable to initiate or defend a lawsuit while they are on active duty. The United States Supreme Court has said that these laws are meant to benefit, “those who dropped their affairs to answer their country’s call.” Lemaistre v. Leffers, 33 U.S. 1 (1948). In 2003 the United States Congress passed 50 U.S.C. App. 501, the most recent of these laws, known as the “Servicemembers Civil Relief Act (SCRA).”
The SCRA offers a wide variety of protections to servicemembers. You (or your spouse) might be entitled to protection under the SCRA if you fall into any of the following categories:
Members of the Armed Services.
Members of the Armed Services Reserves who are on active duty.
Members of the National Guard if they are activated under a federal call to active duty. It also applies when Guardsmen are activated more than thirty days in response to a president’s declaration of a national emergency.
Many portions of the SCRA apply to the dependents of servicemembers as well.
Like many people, you may not think of a divorce as a lawsuit; however, it is a civil lawsuit that must follow many of the same rules and procedures as any other civil lawsuit. When a service member is a party to a divorce, and qualifies for protection under the SCRA, it is important to understand how the divorce proceedings could be impacted. For example:
Affidavit requirement — an opposing party is required to file an affidavit stating either that the person being sued is not on active military duty or that the party could not determine whether or not the person being sued is engaged in military service before a judgment can be granted. There are penalties for filing false affidavits in these matters.
Stay – is a servicemember is in a period of military service or within 90 days of a period of military service, and he/she has received notice of a lawsuit, a stay of proceedings is available.
Court’s obligation — the court must grant a stay of not less than 90 days when a servicemember qualifies for protection under the SCRA and requests a stay. The request must include all of the following:
communicate to the court that military service materially affects the defendant’s ability to participate in the case
provide the court with a date that the servicemember can appear in court
include a letter from a commanding officer indicating that the defendant’s military duty prevents him or her from appearing in court and that a leave of absence will not be available.
Additional stays –a servicemember may request and receive additional stays if the court deems it appropriate and can even receive a stay from having to comply with an order or decree that may have been entered.
Set aside — judgments entered during a period of military service or within 60 days after military service can be set aside. For example, if you qualify for protection under the SCRA and your spouse gets a court to grant a default divorce decree, you may have that decree “set aside” as if it was never entered. You must make an application with the court within 90 days of release from the military.
If you are in the military, or you are the spouse of someone who is, and you are contemplating divorce, contact an experienced Fort Worth military divorce attorney at Boyd Family Law to discuss your legal rights and options and to schedule your appointment today.