Protections For Deployed Military in Divorce Cases

Are you familiar with the Servicemembers Civil Relief Act (SCRA)?This is a federal law that protects active duty service members from legal entanglements while in active duty service. The protections under SCRA range from reducing interest rates while on active duty, to limiting a landlord's ability to terminate a military members lease, to allowing a military member to terminate a vehicle lease early.

One important rule of SCRA is the limiting of default judgements. The law protects military members from being brought to court, while they are occupied with military deployment.This is highly relevant when it comes to divorce, or child custody cases.This article will first look at the relevant provisions of the SCRA and then apply the law to see how it will helpa military member in certain divorce scenarios.

As the SCRA states expressly in its purpose (50 U.S.C. § 502), the law's intention is to "strengthen, and expedite the national defense through protection extended by this Act to military member of the United States to enable such persons to devote their entire energy to the defense needs of the Nation." Any person that has been a party to a civil lawsuit can attest that the pending proceedings are at best, distracting. Congress reasonably believed that protecting soldiers fighting for us abroad from unnecessary legal stresses improves national defense.

Besides providing protections for most civil debts (including special protections for mortgages, leases, and automobiles), the SCRA's broad scope includes the civil lawsuits that accompany most divorce legal actions. For example, Section 521 offers protections for military member against default judgments that apply "to any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance."

It will be worth our while to spend a little time with Section 521 as the protections afforded military member get a little technical. As stated above, Section 521 of the SCRA provides a remedy for a military member that has had a default judgement issued against him/her while serving in active combat. In reference to divorce, this applies to the initial filing of the divorce and any ancillary action that that might arise from the such as adjustments to spousal support or child support.

In Section 521(b)(1), the law requires the plaintiff to file an affidavit if the judge has reason to suspect the absent defendant is in active service. Unfortunately, courts do not always discover in time the fact that an absent defendant is a military member serving actively abroad. Then, as would happen to any other defendant, courts most often enter a default judgment against an absent party.

You can imagine how completely unfair this would be. Conjure a scenario where a Staff Sergeant has been divorced for years and his/her spouse sues the military member for increased child support due to rising medical costs while the Staff Sergeant is serving in a combat theater 7000 miles away. Given the complexities of some missions, it is entirely reasonable that the Staff Sergeant would not even hear of the suit until months after the default judgment has been entered by the court. It would be exceedingly difficult on the psyche of our military member if such a scenario was plausible without recourse.

The remedy to such a hypothetical is found in Section 521(g) which assigns the authority to a court to vacate or set aside a default judgment if it is "entered in an action covered by this section against a military member during the military member's period of military service (or within 60 days after termination of or release from such military service)." Not only are military member protected from default judgments while abroad in active service, but they are protected from default judgments for the 60-day window immediately after the end of active service.

This is where it gets a little tricky. Section 521(g)(2) states that if a court enters a default judgment military member in the time frame discussed above, the military member has 90 days from the end of active duty to alert the court to the violation of the SCRA. Such a formal notice to the court will require the military member to elucidate two necessary findings: 1) that active duty service "materially affected" the military member's ability to bring a defense (this element isn't too difficult to meet) and 2) that the military member has a meritorious legal defense to the relevant judgment. Obviously, that latter element will be entirely fact-specific to the relevant claims.

Elaborating on our hypothetical will help make this clearer. Let's say our Staff Sergeant was on active duty through 1 January 2019. On 1 February 2019, the court issued a default judgement against the Staff Sergeant after the failed appearance regarding the child support suit. Because it is within 60 days of the Staff Sergeant's end of active duty, the protections from SCRA apply to this suit. The Staff Sergeant would then have 90 days from the end of active duty—in this case 1 April 2019—to file a motion with the court requesting relief under the SCRA.

How is an active duty military member to defend him/herself in court against a demand for an increased contribution to child support while operating in patrols 7,000 miles away? It is as impossible as it is unfair for a military member to present a defense to a civil legal dispute while in active service.

But that doesn't explain why default judgments entered an additional 60 days after the end of active duty may be reopened.A recent discussion with a First Sergeant explained the purpose of this 60-day buffer.

The military does not throw its military member back into civilian life immediately upon the end of a combat tour. The military has learned a cool down transition is necessary for the service members health. As far back as 1940 when the first version of this law was enacted, the statute presumed that a transition period was need for soldiers returning from combat.

In conclusion, SCRA provides an active duty military member protection from certain legal issues.The reasoning behind these protections is to allow a service member the time to focus on national defense. A Service member pre-occupied with legal issues, or unable to defend themselves, could impair their ability to defend our nation.

About the Author:

Stacy Rocheleau, Esq., has practiced divorce law for 18 years.Her Firm, Right Lawyers, helps clients with uncontested divorces, legal separations, and contested divorces. Among her accolades, Ms. Rocheleau was elected the best divorce attorney in Las Vegas, Nevada for 2017, 2018, and 2019. For more information on Stacy or Right Lawyers visit https://rightlawyers.com