The Servicemembers Civil Relief Act of 2003 (SCRA), formerly known as the Soliders and Sailors Relief Act of 1940, is meant to protect military service members from being taken advantage of while away from home serving their country. The law could affect a family law case significantly.
The idea of the SCRA is to protect service members from legal issues at home so that they can focus on their military tasks at hand. The law allows service members to get a delay in any court proceeding that might affect their rights. When a member of the military is sued in a divorce case and they are stationed in another state or another country, the matter can be delayed for a reasonable time to allow that person to more fully participate in the process.
The SCRA protect all active members of the Army, Navy, Air Force, Marines, Coast Guard, officers of the Public Health Service assigned to the Army or Navy, reservists on active duty, dependents and persons or businesses who may be liable along with the member of the military.
How does the judge learn a party is deployed? When the divorce complaint is filed, the person filing it must swear out an affidavit stating whether or not the other party is serving in the military. If the affidavit states that the person is in the military, the court cannot enter a judgment against the person unless and until the service member appears in court or a lawyer is appointed by the court to represent their interests.
If the service member comes back to learn the legal process is over without any notification because the affidavit was false, the party filling it out could face perjury charges. The party could also request that the order be vacated.
If the service member is not available, delays are available
If the military member makes a request, a 90 day delay in the proceeding is normally automatically granted. If more time is sought, the service member must establish they have tried to get a leave of absence to attend the scheduled hearing but were unsuccessful. If that request isn’t granted, the court needs to appoint an attorney for the service member. The length of the delay that must be “reasonable” which depends on the situation, but it can be no longer than the length of the service member’s duty plus three months.
The SCRA isn’t a tool to dismiss a divorce action, though it may delay it
SCRA does not limit the power of judges to make decisions on the merits of the case and does not empower a member of the military to have a divorce case dismissed or have court order in his/her favor just because they are in the military. A court can stay the proceedings if a party’s military service has a material effect on the ability to defend the divorce case. A judge can also deny a stay if the military service has no material effect on the ability to defend against the litigation.
The good and the bad
This extra time is a double edged sword. It may be very helpful to the military member overseas, but will put off the eventual resolution for the spouse back home.
- It will delay a judge from issuing orders.
- If you’re not in the military, these delays can lead to frustration, because the law gives the other parent more time to respond and create legal papers. It also makes the process longer.
There may be advantages to the non-military spouse of a delay, especially if the spouse in the military is close to twenty years of service. If the spouse has only been in the service a short time, the non-military spouse, after a divorce, loses military entitlements, including base housing or a housing allowance, commissary privileges, post exchange privileges and on-base or post medical care.
If there is a long term marriage to a service member with a twenty year career, the spouse may be able to retain rights to future medical care and insurance (just not on base). Under the Uniformed Services Former Spouses’ Protection Act, former spouses can take advantage of full medical, commissary and exchange privileges if,
1) The marriage lasted at least twenty years,
2) The spouse in the service has at least 20 years of creditable service for retirement pay, and
3) The time in the service and the marriage overlap for twenty years. Reduced benefits may be available in limited circumstances when the marriage lasted less than twenty years.
Even if there are delays, decisions can still be made
Judges need to balance the protections of the SCRA and the needs of the family at home. Children’s needs often trump the SCRA’s provisions when orders are written. These can concern outstanding issues concerning children that need immediate attention so that the children at issue can have some stability and predictability.
Balancing the interests of all involved
The SCRA prohibits a service member being defaulted by a judge, which goes to the heart of the law. A default is a decision entered in favor of the party that is in court, against the party who has not appeared. This provision applies in family law cases, including divorce. While a service member is deployed away from the jurisdiction, generally speaking, a judge shouldn’t sign an order in favor of the civilian spouse if the service member parent fails to appear.
If the military member has been defaulted, and he or she had no knowledge of the proceedings, under the SCRA, once the person is released from active duty, there is 90 days to ask a court to open a default judgment that was entered while the person was deployed.
If you’re the civilian spouse and you feel like you’re swimming up against the tide of the SCRA, you still have many advantages. You should have access to the courts. You can still argue the other parent does not have a valid reason for a delay and is abusing the law to get unwarranted delays.