How Does the Servicemembers’ Civil Relief Act Affect a Divorce?

As a general rule, the divorce process is governed by the law of the state where at least one of the divorcing spouses lives. However, federal law can still have an impact on the divorce, especially when one or both spouses are in the military. If you or your spouse are in the military and you are considering divorce, you need to understand the role of the Servicemembers’ Civil Relief Act (SCRA).

What is the Servicemembers’ Civil Relief Act?

The Servicemembers’ Civil Relief Act is a federal law that was enacted in 2003, but it has roots that go back to the middle of the 20th century. The SCRA is an expansion and overhaul of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), which dates from 1940. The purpose of both the original and updated law is to alleviate many of the legal and financial challenges service members must deal with as a result of their service.

Deployment thousands of miles from the U.S. and regular relocation can make it especially difficult for military service members to participate in lawsuits. For those on active duty, it can be hard, if not impossible, to prepare legal filings or appear in court. Understandably, the federal government considers it unfair for service members to be penalized in legal proceedings while they are serving their country.

The protections of the SCRA are designed to prevent unjust legal outcomes that might occur because one party to a lawsuit is on active duty. (The law also serves national security by allowing those in the military to remain focused on their work—not on what’s happening in a courtroom many miles away.)

The SCRA protects service members in a variety of legal matters, not just divorce. But because divorce has such a huge impact on service members’ finances and relationship with their children, it is important to explore how the Servicemembers’ Civil Relief Act affects a divorce.

The Servicemembers’ Civil Relief Act and Divorce

The Servicemembers’ Civil Relief Act does not affect the substance of a military divorce. Decisions about substantive matters like child custody, parenting time, child support and property division are decided by the law of the state in which the divorce is filed. The SCRA does affect the timing and pace of a divorce to make it possible for the service member to participate more fully. Some of the ways the SCRA affects a divorce case are listed below.

Service of Process

Serving someone with the papers to start a lawsuit can be challenging enough when they are in the same town. Service of process on an active duty service member, especially one who is deployed overseas, can be almost impossible. The SCRA has established protocols for serving legal documents on a service member to ensure that they receive proper notice of the divorce or other legal matter.

Stay of Proceedings

A military service member can request a stay of divorce proceedings under the Servicemembers Civil Relief Act if their military service would “materially affect” their ability to participate in the divorce. Depending on the circumstances, the pause could last for the duration of their active duty and potentially up to 60 days after service ends. However, a service member on active duty is not required to stay divorce proceedings; the option is available for their protection if needed.

Protection from Default Judgments

In a divorce, the person who is served with divorce papers (the defendant or respondent) must file a response with the court and serve it on the other party within a limited time—30 days in South Carolina. If they fail to do so, the spouse who filed the papers may ask for a “default judgment,” which means that the divorce can proceed without the participation of the defendant. As you can imagine, the outcome in these cases is usually less favorable for the defendant.

The Servicemembers’ Civil Relief Act prevents a default judgment from being taken against a service member on active duty or within a brief period after the end of their duty. In other words, a spouse cannot take advantage of a service member’s inability to respond to divorce filings to gain a tactical advantage in the divorce.

Child Custody, Support, and Visitation

Matters related to children, such as child custody, support, and visitation, are some of the most frequently disputed in a divorce. The Servicemembers’ Civil Relief Act allows a state court to make temporary orders that take a service member’s military obligations into account and do not punish him or her for having to fulfill those duties. Under the SCRA, state courts can also modify existing custody orders to accommodate a parent’s military service.

Guidance Regarding the Servicemembers’ Civil Relief Act and Military Divorce

Whether you are a military service member who is facing divorce, or the spouse of a service member, the Servicemembers’ Civil Relief Act affects your rights. The law does its best to balance the interests of those serving in the military with the needs of non-military spouses in the legal process.

To learn more about the Servicemembers’ Civil Relief Act and military divorce, contact the Brinkley Law Firm to schedule a consultation with our experienced military divorce attorneys.