The Servicemembers Civil Relief Act (SCRA) is a federal law that protects members of the military from legal actions while they are on active duty. Congress passed this federal law with the intention to cut down on distractions for soldiers engaged in operations. Therefore, the SCRA prevents parties from pursuing certain actions such as divorce and child custody cases against deployed military personnel without a court order. The Act covers active duty Servicemembers, including reservists and members of the national guard who are mobilized.
From a divorce, or other family law perspective, the SCRA applies to all judicial proceedings, including post-divorce matters, and to administrative agencies. However, it does NOT protect Servicemembers in criminal cases.
If you know your spouse is or has been in the military but is not currently deployed, it is best to obtain an Affidavit stating the facts in support of your allegation that he or she is not deployed before filing for a divorce. This will help you in court if your spouse does not appear for an initial hearing, because the court will want proof that the he or she is not on active duty.
The SCRA does not provide or require you to fill out particular government forms; however, some individual courts do, so you should check prior to the hearing dates in each separate jurisdiction. Most courts accept properly prepared affidavits, but this acceptance is not a given under all circumstances.
If the court cannot determine whether your spouse is in military service, they may require you to post a bond as a condition of entry of a default judgment in your favor. Should the defendant later be found to be a Servicemember, the bond may be used to indemnify the defendant against any loss or damage which he or she may incur due to the default judgment (if it should be later set aside). Criminal penalties are provided for filing a knowingly false affidavit.
If the defendant is deployed, that will affect the manner in which the case moves forward. The court then must decide how long to delay the proceedings. The court shall delay the proceedings for at least 90 days if the court determines that: (i) there may be a defense to the action and a defense cannot be presented without the presence of defendant, or (ii) after due diligence, you have been unable to contact the defendant or otherwise determine if a meritorious defense exists.
If a default judgment has been entered against the Servicemember during his period of military service (or within 60 days after the end of service), the court will reopen the judgment to allow the Servicemember to defend if:
a. he was materially affected due to military service in asserting a defense, and
b. he has a meritorious or legal defense to the action or some part of it, so long as
c. the application is filed within 90 days after the end of military service