The Servicemember’s Civil Relief Act has provisions that can complicate or delay a divorce case. The Act creates both a minefield and opportunities.
By Karen Robbins, Family Lawyer
As a family law practitioner, you will likely represent a client whose spouse is either an active military servicemember, a reservist, or a national guardsman at some point during your career. If the spouse is not on active duty, your case will proceed as any other. However, if the spouse is on active duty, the Servicemember’s Civil Relief Act, 50 USC 500 et seq (the “Act”) requires yours and your client’s compliance. The Act creates both a minefield for the unsuspecting practitioner and opportunities for creative settlement.
Most family lawyers know that in order to obtain a default judgment, they must file a required affidavit concerning military service with their request. If the spouse is on active duty with the military and may have a meritorious defense to the action, the Court may not enter a default unless it follows the Act requirements, which include a mandatory 90-day stay of proceedings, and an appointed attorney to represent the servicemember. The attorney’s representation is limited to ensuring that the servicemember is aware of the action filed, and understands the implications of failing to respond. The attorney will determine whether the servicemember has a meritorious defense to the action and will decide whether to request an additional stay for the servicemember.
The Element of Delay in The Servicemember’s Civil Relief Act
Even if the servicemember answers the initial pleading, if he or she is on active duty, he or she may request a 90-day stay of proceedings if their military service materially impacts their ability to appear and defend the action. The servicemember may also request additional discretionary stays under the Act, which are granted only if he or she has a meritorious defense and the nature of the military service precludes appearance. Note that maintaining the motor pool at a nearby installation is hugely different from facing enemy fire in Afghanistan. The former is unlikely to merit an additional stay of proceedings, although the latter very well may.
If the servicemember was not on active duty at the time he or she was served with the initial pleading, but was then called to active duty, a request for a stay of proceedings is also available under the Act. The Act also provides protections if, because of active military duty, the servicemember did not receive a pleading in an active case in time to defend, and had an unfavorable order entered as a result.
The ability to stay proceedings is not unlimited under the Act, and although some servicemembers are unable to appear in a state court for a long period, eventually they will be entitled to leave. In order to ensure that a servicemember does not abuse the stay provisions of the Act, it requires that requests for stay of proceedings be accompanied by a letter or signed statement from the servicemember’s commanding officer, verifying the servicemember’s duty status, confirming that the servicemember is not eligible for leave and providing information as to when the servicemember will be eligible for leave.
Protections for Servicemembers and Families
Although it contains a number of procedural traps for the unwary, the Act also provides protections for Servicemembers and their families which might help the settlement of their case, specifically in the areas of interest rate reductions on loans, eviction proceedings, vehicle leases, and foreclosures on mortgages. These provisions may present case resolution opportunities for divorcing servicemembers and their families that are not available to the general public.
Every family lawyer will, at some point in their career, give counsel in a case that somehow involves the Act. An attorney who is experienced in cases involving the Act can help guide you through the many requirements. Attorneys who practice in this area are usually generous with their time and knowledge and are often happy to help. Prepare by going to the Judge Advocate General’s website here and obtaining the publication JA 260. You can also obtain a wealth of information at the American Bar Association, Family Law Section, Military Committee website.
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Karen Robbins is a practicing family lawyer in Maryland. She is an active member of the American Bar Association, Family Law Section’s Military Committee, and has presented on military issues in divorce on state and national levels. www.KarenRobbinsLaw.com.
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