Protection from Default Judgments
50 U.S. Code App. §201, which applies to any civil action, provides servicemembers being sued (which includes being sued for paternity or divorce) with relief against default judgment. A party seeking a default judgment must first submit an affidavit stating whether the defendant is or is not in the military, or that the party does not know whether defendant is in the military. A judgment obtained without the affidavit is voidable if the servicemember later shows that his/her military service prejudiced the presentation of a defense.
Unless the affidavit states that the defendant is not in the military, the divorce court must appoint an attorney to represent him/her. The responsibility of the court-appointed attorney is to ascertain whether the defendant is in the military and, if so, typically to request a stay of proceedings in the defendant's behalf.
A court shall reopen the default judgment and allow the servicemember to defend the case when:
- The judgment was entered during the military service or within 60 days thereafter,
- The servicemember's ability to defend the case was materially affected by the military service,
- The servicemember has a meritorious or legal defense, and
- The application to reopen is made during the military service, or within 90 days after it ended. Technically, this means total military service, such as ETS or retirement, not just the specific deployment or other foreign service which prevented the servicemember from appearing.