What If My Spouse Is in the Military?

The Service Members’ Civil Relief Act (SCRA) is a federal law governing (and protecting) military services members from certain legal actions. SCRA provides protection for servicemen and women and their families based on the theory that a service member should be able to perform his or her duties without concern about being sued.

SCRA protects service members who, by virtue of being away from home in military service, might not be able to answer and/or enter an appearance in court and thus be exposed to a default judgment against them. A military defendant in a civil action may use the SCRA to postpone a lawsuit against him or her for the duration of his military service plus 60 days. Generally, however, in cases where the defendant is in the military, the court must delay the proceedings for at least 90 days if the Service Member must be present in court.

If the Service Member is still on active duty, he or she can easily use SCRA to delay a divorce he or she does not want. For example, a spouse-husband is on the ground in Afghanistan. His military service prevents him from being present for the divorce. In that case, a delay would be granted, but this does not mean that the wife can never get a divorce, or that her husband never has to show up. Even if a delay is granted, it only postpones the case; it does not remove it.

If the military spouse in this case wished to contest the divorce, SCRA would probably be grounds he could use. If he did not contest the divorce, he could default by waiving his rights and let the action proceed.

SCRA does not say that a military member doesn’t have to show up for trial. A court can delay the trial if a party’s military service has a material effect on his or her ability to defend the  divorce; but a court can also deny any delay requested if military service has no material effect on their ability to defend against the divorce.

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 him to return to the United States. For example, there is a regulation dealing with paternity and nonsupport cases, which authorizes leave for the service member.

Very often in divorces, the military spouse waives his or her right to SCRA protection from litigation. This always true in uncontested divorces.