There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military members from being divorced without knowing it and may result in a slower divorce process compared to a divorce of civilian spouses.
Under the federal Servicemembers Civil Relief Act and in the discretion of the local California court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter. The right to have this postponement can be waived by an active duty member should he or she wish the divorce to proceed.
If the judge learns the spouse being sued for divorce is serving on active duty, the court must stay the proceedings for at least 90 days (upon application of that servicemember or his attorney or on the court’s own motion) if the court determines that:
- There may be a defense to the action and a defense cannot be presented without the presence of the servicemember, or
- After due diligence, counsel for the servicemember has been unable to contact him or her or otherwise determine if a valid defense exists.
The servicemember can request a stay beyond the 90 days, up to the length of the active duty plus 60 days. If the judge decides not to postpone the proceedings, if the servicemember does not have a private attorney representing him or her, the judge must appoint one to represent his or her interests.
If a judgment has been entered against the servicemember during his or her military service (or within 60 days after the end of that service), the court must reopen the judgment to allow the spouse to defend if he or she:
- Was materially affected due to military service in asserting a defense, and
- Has a meritorious or legal defense to the action or some part of it, if the application is filed within 90 days after the end of military service.
If you have any questions about divorce procedures when a military spouse is getting divorced, contact our office by filling out our evaluation form.