Common Questions About Military Divorce (Part 2)

By Nancy Shannon

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

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

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.

 

I just found out my wife already got a default judgment against me. What can I do?

You can make an application to the court to re-open the issue and allow you to defend yourself, but you will have to show the court two things:

1. You were materially affected by reason of your military service in making a defense to the action; and,

2. You have a meritorious or legal defense to the action or some part of it.

These requirements basically allow the court to deny your request to re-open the issue unless you can show that the reason you didn’t defend was because of your military service, and, if you had been allowed to defend you had a valid defense to claim.

 

If I ask the court for a 90-day delay, can I still claim a defense of lack of personal jurisdiction?

First, let’s talk about the defense claimed. In order for a court to make a ruling regarding the defendant, the court must have personal jurisdiction over the defendant.  If there is no personal jurisdiction, then the court can’t hold the defendant to any obligation. Generally speaking, personal jurisdiction can be established by being served with process (you are personally served the divorce papers, for example) or if you have a sufficient number of personal or business contacts in the state. If you go to another state every weekend to go shopping, this could be enough for the state to have personal jurisdiction over you.

You have been served custody papers, and you want to claim a defense of lack of personal jurisdiction. You know that this defense can be tricky, because it is easy to mistakenly waive the defense. If you communicate with the court, that can be seen as an ‘appearance’ and is the same as subjecting yourself to the court’s authority, and you lose the defense of lack of personal jurisdiction. How can you ask the court for a 90-day delay and still hope to use the defense of lack of personal jurisdiction later on?

The SCRA specifically provides that a servicemember who requests a 90-day delay, or a delay past the original 90 days, is not ‘appearing’ before the court for any jurisdictional purposes. The SCRA protects you from inadvertently waiving any substantive or procedural defenses, such as lack of jurisdiction.

The SCRA will not provide permanent relief, not does it provide a method to dodge the court’s authority. The SCRA does allow servicemembers to ask for a stay of proceedings, giving them a chance to focus on their military duties while simultaneously reserving their defenses in court.

Before taking any action, or initiating any communication with the court, always consult with your commanding officer first. Additionally, consultation with a domestic litigation attorney is highly recommended when dealing with child custody and support issues.

 

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

 

 

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.

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