Servicemembers Civil Relief ACT (SCRA) protects active duty military personnel from being sued while on active military service and for up to a year after active duty. In divorce actions, this means that a service member (a solider, sailor, airman, Marine, Coast Guardsman or commissioned officers in the Public Health Service and National Oceanic and Atmospheric Administration) may request a stay or postponement of a divorce action.
A military defendant may enlist SCRA to postpone the case against him or her for the duration of the military service plus 60 days. Generally, however, in cases where the defendant is in the military, “the court must stay the proceedings for at least 90 days (upon application of the Service Member or his or her attorney or on the court’s own motion)” when the court determines there “may be a defense to the action and defense cannot be presented without the presence of the Service Member.”
In order to apply for these protections the service member must actually be a party to the suit. The provision applies to civil lawsuits, suits for paternity, child custody suits, and bankruptcy debtor/creditor meeting; however, it does not apply to administrative hearings, criminal trials, child support proceedings, actions where the service member is a material witness, and situations where the “service member has leave available and has made no attempt to use his/her leave to attend the proceedings.”
Service personnel who become parties to an unwanted divorce use SCRA’s protections to contest the action. Often the service member’s commander writes a letter to the court and the opposing party’s attorney stating that the service member cannot attend the proceedings. The member should not have an attorney draft such a letter to the court because a letter could be considered an appearance by the service member and could subject the service member to the jurisdiction of the court.