Active Military Members and Divorce: Know Your Rights

By Nancy Shannon

Attorney, Cordell & Cordell P.C., Omaha, Neb., office

Note: This is Part 1 of a 2-part series on active military members and common questions about their rights. Click here to read Part 2.

Active members of the United State’s Armed Forces may be able to seek protection from civil actions under the Servicemembers Civil Relief Act of 2003 (SCRA). Tracing its origins back to the Civil War when a freeze was placed on all civil actions against federal soldiers, the SCRA provides expanded protection over it’s predecessor, the Solders’ and Sailors’ Civil Relief Act of 1940.

Servicemembers are at a disadvantage when faced with defending a civil lawsuit or fulfilling financial obligations while also serving their country. The SCRA provides protection to active members of the armed forces, in addition to reservists and members of the National Guard, in some circumstances. There are several different types of protections, ranging from lowered interests rates to eviction restrictions.

For any parent (or alleged parent) in the military, the SCRA provides a valuable benefit when faced with child custody and child support issues.  It’s possible for parents in the military to stay, or suspend, civil actions brought against them during their service, and for a brief time after, in some situations.

Read on for common questions about SCRA.

 

Does the SCRA apply to me?

The SCRA applies to active duty servicemembers, Reservists, and members of the National Guard, while on active duty. (See http://www.military.com/benefits/legal-matters/scra/overview.) Additionally, members of the National Guard are protected when called to service for a period of more than 30 days when responding to a national emergency as declared by the President and supported by federal funds.

 

I’ve been served with papers. How do I make it work?

The SCRA requires two steps.

1. The servicemember must submit a letter or other correspondence to the court. This correspondence will state how the servicemember’s active duty requirements materially affect his or duty to appear before the court and a date when the servicemember will be able to appear before the court; and,

2. A letter from the servicemember’s commander stating the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time the letter is written.

Upon receipt of these letters, the court shall postpone any scheduled hearing for 90 days. After the 90 days, it is within the court’s discretion as to whether further postponement will be granted.

 

So I don’t have to pay child support?

Wrong. A hearing for child support can be put off for 90 days, but the court can certainly allow a child support hearing after that time. If the court then issues an order requiring the servicemember to pay child support, then the order is valid and child support is owed beginning on the date specified in the order.

 

Note: This is Part 1 of a 2-part series on active military members and common questions about their rights. Click here to read Part 2.

 

 

Nancy R. Shannon, a Nebraska native, is an Associate Attorney in the Omaha, Nebraska office of Cordell & Cordell, P.C. She is licensed in the state of Nebraska where her primary practice is exclusively in the area of domestic relations. Ms. Shannon received her Bachelor of Arts degree from Doane College and her Juris Doctor from University of Nebraska – Lincoln, where she was a finalist in a Moot court competition and active in Client Counseling activities.