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Military divorce and SCRA: a primer

On Behalf of | Jul 9, 2020 | Military Divorce

Those who are considering a divorce are likely aware of the fact the process is a legal proceeding that covers many issues, potentially including asset division, child custody arrangements, child support, and spousal support. Where one spouse is an active member in the military, it may be necessary to navigate additional issues. One such example is the implication of the Servicemembers Civil Relief Act (SCRA).

What is the SCRA? Lawmakers passed the Servicemembers Civil Relief Act (SCRA) to protect those who are serving active duty, and thus often unavailable or unable to attend to matters they would otherwise be able to address (e.g., bill payment, landlord tenant disputes, foreclosures, custody disputes, etc.).

The SCRA makes it generally unlawful for legal action to be taken or conducted against an active duty Servicemember while they are deployed, subject to a permanent change of station, or otherwise unavailable due to their military service. This protection also applies to divorce or other family law-related matters, and acts to prohibit adverse treatment or punishment against active military members who are away from home on active duty and unable to attend court hearings related to divorce.

How does this work? When it comes to civil court proceedings, the active military member is generally given a stay of execution. This is a court order that suspends the legal proceedings. In other words, it essentially puts everything on pause which will continue until further order of a court.

The SCRA also protects Servicemembers from risk of default judgment, which would permit the other party to a divorce to proceed in litigation without the input or participation of the Servicemember. This means that the other party must establish that the Servicemember is not actually serving in the military. Only in such circumstances is a court permitted to proceed. However, no one is infallible and even judges make mistakes. Whether right or wrong, if the other party is successful, the court may proceed to rule against the active military member. When it comes to a divorce, this can have a negative impact on asset division, support obligations, and often most importantly, child custody determinations.

It is important to note that military duty alone does not trigger the SCRA protections. Additional factors are generally required. Examples may include deployment or permanent change of station (PCS). Accordingly, it is very important to act if you are the subject of a divorce proceeding or anticipate filing for divorce.

This is just one of many issues that can apply to a divorce involving an active member of the military. A divorce that involves a member of the military is particularly complex as it often includes issues of both federal and state law. As a result, it is wise for those going through a divorce in such circumstances to seek legal counsel that has experience in this niche area of military divorce and family law.

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