How does a deployed military member stop a default divorce from being filed? Military members, like everyone else, only have 21 days to respond to a divorce complaint. But, unlike civilians, a military divorce or custody action can be stayed by the Servicemembers Civil Relief Act (SCRA).
SCRA provides protections to deployed military members. SCRA can protect from much more than just defending a divorce. It can help prevent repossession of a vehicle, halt foreclosure or eviction, and even help reduce or toll rising interest rates.
SCRA Default Judgment Protection
SCRA is found at 50 U.S.C. § 3901-4043. Its express purpose is to provide protection to servicemembers who are deployed on active duty. This federal law protects servicemembers on military deployment from being hauled into court while they are defending our country.
SCRA provides these protections so that servicemembers can focus on defending the Nation and not on lawsuits or financial matters back home. Lawsuits and financial matters are stressful and distracting. Congress has determined that taking away the stress of the pending proceeding improves national defense.
SCRA not only provides protection from lawsuits, but also has special provisions regarding an array of civil debts, including automobile financing, mortgages and residential lease agreements.
SCRA & Military Divorce
As discussed, SCRA provides protections for servicemembers if they have a default judgment entered while deployed on active duty. SCRA speaks directly about default judgments which can arise from a divorce or child custody action where no response or appearance is made because the servicemember is deployed. SCRA can also stay a divorce and custody actions served or initiated while on deployment.
Without SCRA a divorce action could be completely unfair to the Servicemember. For example: Master Sergeant Joe was divorced for several years and has two children with his ex-wife. Master Sergeant Joe is serving on active duty and is deployed to another country for 6 months. During the time of his deployment, his ex-wife sues Master Sergeant Joe for an increase in child support. Because he is overseas, he didn’t answer the lawsuit, and his ex-wife wins a default judgment. Master Sergeant Joe may not even learn about the suit for several months after his ex-spouse is awarded a judgment against him. It is inherently unfair to allow that default judgment to stand. SCRA allows the court to set aside this default judgment.
SCRA may not apply if the ex-spouse of the military member is looking to enforce a Joint Petition for Divorce, or previous divorce order if the stay would substantially harm the ex-spouse. Judges have some discretion to decide if the stay is necessary to protect the deployed service member. For example, an ex-spouse is needing to relocate out of state with the children because of her job. The judge may not have any choice but to allow the spouse to do so. But the judge will stress this relocation is a temporary order. A full proceeding will be held when the military member returns from deployment.
The judge may stay the order if he believes the defendant may be a servicemember on active duty, the judge may stay the order. Or the deployed service member may hire a divorce attorney to ask for the stay to be filed.
The servicemember cannot sit on their rights and ignore that a judgment has been entered against them. They only have so much time to file for a stay. SCRA section 3931(g)(2) requires after a court enters a default judgment against a service member, they must, within 90 days from the end of the deployment, file in court that there has been a violation of the SCRA. So, in our hypothetical scenario, Master Sergeant Joe would have 90 days after the end of his active duty—in this case 1 June 2019—to file an application with the court and request the default judgment be set aside under the SCRA
In the formal notice for a stay, the servicemember must show and state that the active duty service prevented the servicemember from being able to answer the lawsuit and, in fact, the ability to answer the lawsuit was materially affected by his/her active duty service. Second, in this notice the servicemember must show that they have a meritorious defense to the lawsuit which warrants setting aside the default judgment. The first step is typically easily proven. The fact that the legislature has such a law to protect servicemembers and that it is a matter of national defense make this element relatively easy to meet. The second step can be shown and is case specific.
The 60-Day Rule
An active duty military member cannot reasonably be expected to defend themselves against a divorce or custody case while deployed overseas. That part is understandable, but what may not be understood is the fact that any default judgment entered 60 days after deployment is over may be set-aside.
Going back to our hypothetical can help make this provision easier to understand. Let’s say Master Sergeant Joe was deployed through March 1 2019. After he returned, on March 12 2019, the court issued a default judgment on Master Sergeant Joe because he failed to answer the child support suit his ex-wife filed against him. Because the default judgment is within 60 days of the Master Sergeant Joe’s end of deployment, the protections from SCRA apply.
The servicemember is back on U.S. soil and can reasonably defend such an action. Can’t he defend himself? Congress has said “No”. Congress provides the solider an additional 60 days after the end of deployment to have the default set aside. This 60-day provision is necessary because the servicemember is often not placed back into civilian life by the military immediately upon the end of deployment. In fact, the military has in place a certain amount of transition time after active duty which is beneficial for the servicemembers health.
In conclusion, the SCRA provides active duty servicemembers protection from certain legal lawsuits, so that the servicemember has the time, and energy to focus on national defense. The stress and pre-occupation with legal issues could impair the servicemember’s ability to perform his job, which is to defend our nation.