Military Divorce & Civil Relief Act

Divorces involving active military have the potential to add another layer of complexity to the divorce process.  Normally divorce is handled by Nevada law.  But, the Service Members’ Civil Relief Act (SCRA) is a Federal Law that protects military members. The law was passed by Congress as a way to cut down on distractions for soldiers or other active military personnel engaged in important operations. It is vitally important that plaintiffs in a divorce involving an active service member pay attention to particular divorce rules under SCRA, in order to avoid potential fines, penalties and even imprisonment.

The SCRA serves as protection for all active members of the Army, Navy, Air Force, Marines, Coast Guard, as well as officers of the Public Health Service assigned to the Army or Navy, reservists on active duty, dependents and persons or businesses who may be liable along with the member of the military. The idea behind the passage of the SCRA was and is to protect service members from legal issues at home so that they can more fully focus on their military tasks at hand. The law allows service members to obtain a delay in any court proceeding that might impact their rights. When a member of the military is sued in a divorce case and they are stationed in another state or another country, the matter can be delayed for a reasonable time to allow them to participate more fully in the process.

The SCRA essentially prevents litigants from pursuing certain actions such as divorce and child custody cases against deployed military personnel without a specific court order taking into account their status in the military. In addition to the federal SCRA, many individual states, including Nevada, have passed their own laws that actually tend to go above and beyond the federal SCRA. That is why it is critically important that your divorce lawyers are always fully informed on both the federal and the state statutes, so as to avoid the consequences of violations.

If the defendant spouse fails to appear and the plaintiff spouse lacks the proper documentation to prove whether the defendant is in the military, the judge will likely continue the case for 90 days. Given that this information can usually be obtained within 24-48 hours, a three-month delay is a significant setback that can be easily avoided.

Obtain a Military Affidavit

A valid question to ask yourself is, how does the judge learn that one party in a divorce case has been deployed? When the divorce complaint is filed, the person filing it must swear out an affidavit stating whether or not the other party is serving in the military. If the affidavit states that the person is in the military, the court cannot enter a judgment against the person unless and until the service member appears in court or a lawyer is appointed by the court to represent their interests.

If the plaintiff spouse in the divorce proceeding knows the defendant spouse is or has been in the military but is not currently deployed, or if they know they’re in the military but know nothing about their military service, it is a good idea to obtain a nonmilitary affidavit before filing for divorce with the courts. Whether or not the service member is deployed will have an impact on how the case moves forward. If the defendant military spouse fails to appear for the initial hearing, the court will often want proof that ththey are not on active duty.

In most cases, the court will usually require an affidavit, which can only be obtained through a qualified third-party service. While the SCRA itself does not require you to fill out particular government forms, some individual courts do, which is why you and your attorney should check with the specific court prior to the hearing dates in each jurisdiction, to determine how the SCRA will apply. Whereas most courts will accept properly prepared affidavits, such acceptance is not a given and may depend on specific  circumstances. The military affidavit should specify which active duty status date to search, and the search results will cover the 365 days up to and including the active duty status date. To search for a period longer than a year, you will have to request separate searches for each year.

The best way to get the best and fastest search results is by submitting the defendant’s Social Security number, although the information can be obtained with other identifying information, such as names, addresses, date of birth, driver’s license number, family members’ names, and a lot of other information.

How the SCRA Can Affect a Divorce 

The Service Members’ Civil Relief Act is a critical factor if a military service member would like to contest their divorce. If they choose not to contest it, they have the option to waive the rights afforded by the SCRA and the divorce can proceed as usual. The SCRA protects servicemen who might not be able to answer a divorce complaint or appear in court.  The military member could be exposed to a default judgment against them because they are far from home performing tasks as part of their military service.

Unless a court finds that a military spouse’s ability to defend or pursue action is not materially affected by his military duties, said court will likely issue a stay of the proceedings, and that SCRA stay can last for the duration of their service plus sixty days.

That does not mean a service member never has to show up for trial, but it means the court can stay (meaning delay) the trial if a party’s military service has a material effect on their ability to defend the litigation. Of course, a court may also deny any stay requested if their military service has no material effect on their ability to defend against the litigation. In a number of cases, courts have ruled against arguments using SCRA to postpone civil litigation unreasonably or even to defeat it entirely.

Overall, even with the SCRA in effect, service members are still subject to the same civil and criminal laws as civilians. Under some circumstances, there may be a military regulation that would allow or compel them to return to the United States. For example, one regulation dealing with paternity and nonsupport cases actually authorizes leave for the service member.

Regardless, all divorce actions involving military personnel require that the military status of the respondent be documented in compliance with the SCRA, including cases in which the respondent is missing. At the very least, at some point in the divorce process the civilian spouse is required to authenticate the military status of the military spouse.

The SCRA provides other protections to military families, including caps on interest rates on debt obligations entered into before beginning active duty.  In addition, there are restrictions from eviction, and special conditions for the termination of property and automobile leases. In many cases, the non-military spouse may lose certain entitlements they enjoyed as a spouse of a service member, such as base housing or housing allowances, commissary or post exchange (PX) privileges or on-base or on-post medical care.

The SCRA offers a lot of protection for active service members in a divorce, but failing to take it into account the law could cost a non-military spouse dearly, so make sure your Las Vegas divorce attorney is aware of the law and keep them in the loop regarding deployment or their active status.