Military Divorce and SCRA
There are a number of federal laws and protections that apply to military members and their spouses. One of those laws is the Servicemembers Civil Relief Act (SCRA) of 2003. The history behind the SCRA and similar laws is important to understanding the need for protecting our service members’ rights.
During the Civil War, Congress passed a moratorium on civil lawsuits brought against Union soldiers and sailors. Civil actions arising out of breach of contract, foreclosure, bankruptcy, or divorce, for example, were stopped and would wait until the soldier or sailor returned home from the war.
When the same lawsuit issues arose during World War I, the Soldiers’ and Sailors’ Civil Relief Act of 1918 was passed by Congress. The 1918 act was not a total moratorium, but did provide protection against foreclosure, repossession, bankruptcy, and the like, while the service member was at war. The act expired shortly after WWI.
The Soldiers’ and Sailors’ Civil Relief Act (SSCRA) of 1940 helped military members in World War II. Like its predecessor statute, it stayed and limited actions against soldiers, sailors, marines, and airmen whose military duties prevented them from responding to lawsuits, including family law disputes. Unlike the 1918 act, the 1940 act was not set to expire, and is still in effect today with a new look.
In 2003, during Operation Iraqi Freedom, the Servicemembers Civil Relief Act (SCRA) completely revised, replaced, and strengthened provisions of the earlier SSCRA. The SCRA has two very important purposes:
One: To enable service members to focus all of their energy on their nation’s defense.
Two: To provide for the suspension of lawsuits and administrative proceedings against a service member that might adversely affect his or her civil rights while on military duty.
Today, when service materially affects the member’s ability to pay creditors or respond to civil lawsuits including divorce, the SCRA provides significant legal protections including the following:
- Stay of civil actions. Delay of all civil actions — bankruptcy, breach of contract, foreclosure, divorce — when military duties prevent the member from full and fair representation in court. This is particularly important to deployed service members and those stationed overseas. 50 U.S.C. App. § 202.
- Protection from default judgments, including divorce and paternity actions against military members. 50 U.S.C. App. § 201.
- Six percent, low interest rate loan caps on mortgages, automobile loans, credit cards, and other debts.
- Protection from lease termination and eviction.
- Protection from paying taxes in two different states.
Here’s what you need to be mindful of with the SCRA. The military spouse can request a stay, or suspension, of the divorce proceedings for a 90-day period. The purpose of this delay is to give him or her additional time to respond to the petition, and prepare for a trial. If the military member seeks to stay the proceedings, then he or she provides a statement that military duty prevents participation and appearance in court, and then includes a date when availability for appearance is possible. The member’s commander may provide a similar statement, in the alternative, and include words to the effect that leave is not authorized.
Lastly, although the SCRA may stay civil court proceedings, it will not protect the service member from criminal prosecution for nonpayment of child support.