If you’re a member of the military and seeking a divorce, you may wonder how particular laws may impact your divorce case.
The Servicemembers Civil Relief Act (SCRA), formerly the Soldiers and Sailors Civil Relief Act, was enacted by Congress in 1940 and revised in 2003 to update and clarify the areas it covers. The stated purpose of the law, under 50 U.S.C. §§3901-4043, is:
(1) to provide for, strengthen, and expedite the national defense through protection extended by this chapter to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service. § 3902
The SCRA is a federal law that protects active-duty military personnel, or those who are in their first 90 days post-service, from being adversely affected by certain civil actions. A California military divorce or family law case is one such action that can be affected by the SCRA.
How the SCRA Might Affect Your Military Divorce
The SCRA deals with such issues as reinstatement of health insurance, contracts, mortgages, liens, life insurance, power of attorney, and very importantly, divorce. In a military divorce case, the Act provides that if a default judgment is taken against a servicemember on active duty, that and any proceedings in court can be stayed (paused), meaning stopped until the member is off active duty or an earlier date if permission to do so is granted or allowed under the Act.
In certain instances, a servicemember must explicitly ask for a stay and in some cases the stay is automatic, but a stay cannot be counted on unless it is acted on by a judicial officer upon request.
This list of protections is not inclusive and going into extensive detail here is not possible, but make sure your family law attorney is aware of the provisions of the SCRA and knows how to apply them to help you, whether you are the servicemember or the spouse of a servicemember.
How SCRA Could Impact Child Custody & Visitation Cases
Although the Act does not provide any specific direction as to child custody and visitation proceedings, California law does cover these issues under Family Code section 3047, which says in part:
a) A party’s absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party’s activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.
This means that the mere deployment of a servicemember is not enough to justify changing custody or visitation orders, and under 3047(b), if the court takes any actions to modify such an order, it is to be a temporary order only:
(b) (1) If a party with sole or joint physical custody or visitation receives temporary duty, deployment, or mobilization orders from the military that require the party to move a substantial distance from his or her residence or otherwise has a material effect on the ability of the party to exercise custody or visitation rights, any necessary modification of the existing custody order shall be deemed a temporary custody order made without prejudice, which shall be subject to review and reconsideration upon the return of the party from military deployment, mobilization, or temporary duty.
SCRA & Military Divorce: The Bottom Line
If you are a servicemember involved in a California divorce or family law case, take steps to actively protect yourself under the provisions of the SCRA and state law. Confer with an experienced attorney, carefully retain copies of any court documents you receive, and do not miss any deadlines you must meet under California law or federal law.
As a non-servicemember party to a divorce, be sure you meet all procedural rules and deadlines and be aware that the SCRA gives protection to the other party that may delay or halt the case for a certain amount of time.
Contact a San Diego Divorce Lawyer
When you’re going through a divorce, an experienced divorce attorney can help you understand the process, including particulars related to military divorce.
If you are considering divorce or have already made the difficult decision to pursue divorce and have questions, contact JWB Family Law to schedule a free consultation.