The Military Divorce Guide was created by Carl O. Graham, a Colorado Springs divorce lawyer and former Army JAG officer who focuses exclusively on Colorado divorce, military divorce issues, child support, grandparent rights & visitation, common law marriage, child custody, legal separation, annulment, etc. To learn more about our Colorado Springs family law firm, visit our web site at: www.carlgraham.com.
Most military personnel have probably heard of the SSCRA, or the Soldiers' & Sailors' Civil Relief Act, even if they are not familiar with all of its nuances. That 1940 statute has now been superceded - in December 2003, it was replaced with the Servicemembers Civil Relief Act of 2003 (SCRA). The new act is more than just different terminology to ensure that airmen and Marines are not left out - it contains numerous updates and new protections for servicemembers which did not exist in the 1940 version of the act. Most of those changes, however, are not applicable to family law cases, but pertain to insurance, taxes, leases, etc.
From a Colorado divorce, legal separation or paternity perspective, the SCRA applies to all proceedings, including post-decree matters, etc. Note that it does NOT protect servicemembers in administrative proceedings or criminal cases. It covers active duty servicemembers, including reservists and members of the national guard mobilized under Title 10, United States Code.
However, contrary to what many think, the SCRA does not provide a blanket immunity against being sued or participating in litigation. Rather, two specific rights must be respected:
Stay of Civil Proceedings
Under 50 U.S. Code App. § 202, the court may, on its own motion, and shall, upon application by a servicemember which meets these criteria, stay the proceedings for at least 90 days:
1. The applicant is in the military service, or within 90 days after it ended,
2. The applicant has actual notice of the proceeding,
3. The application is in writing, and includes facts stating how military service materially affects ability to appear, and a date when the servicemember may appear, and
4. The application includes a communication from the servicemember's commander that the military duty prevents appearance, and leave is not available.
The initial 90-day stay is mandatory. Thereafter, the servicemember may apply for an additional stay, using the same criteria. The court may deny a subsequent application, however, providing that an attorney is appointed to represent the servicemember.
Simply being stationed overseas, thereby making it more expensive to appear, does not materially affect a servicemember's ability to appear as long as the servicemember is allowed to take leave. Not only do courts know that servicemembers accrue 30 days of leave per year, but DOD Directive 1327.5 section 6.25 states:
When a servicemember requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave.
A servicemember invoking this protection must justify the need for a stay (e.g. the LES proves there is no leave accrued), and have his/her commander write the request. Bear in mind that family law courts in Colorado Springs, which has several military installations, work with servicemembers by allowing telephonic testimony, or scheduling hearings during periods of authorized leave (such as mid-tour leave for a servicemember in Korea). The result is that military personnel are protected, but family law proceedings can still continue.
Finally, if a request for a stay is denied, the servicemember cannot then invoke the protections in section 201 to set aside the default judgment.
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 plaintiff seeking a default judgment must first submit an affidavit stating whether the defendant is or is not in the military, or that the plaintiff 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:
1. The judgment was entered during the military service or within 60 days thereafter,
2. The servicemember's ability to defend the case was materially affected by the military service,
3. The servicemember has a meritorious or legal defense, and
4. 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.
More Information
About.com. Site with information about other SCRA rights not covered here.
Military.com. Excellent overview of all provisions of the SCRA, including those not mentioned here as they do not pertain to family law.
This web site is an advertisement intended for informational purposes, and is not a substitute for individual legal advice from one of the many Colorado Springs law firms, Colorado Springs lawyers or Colorado Springs attorneys. Only a signed agreement with this Colorado Springs family law attorney can create a Colorado lawyer-client relationship. We assist clients in Colorado Springs / El Paso County courts, exclusively in Colorado family law (Colorado divorce, military divorce issues, child support law, grandparent visitation & rights, common law marriage, child custody law, legal separation law, annulment, alimony law, etc).
