The Service Members’ Civil Relief Act
The Service Members’ Civil Relief Act is the amended version of the Soldier and Sailors Civil Relief Act of 1940 (SSCRA), a federal law governing (and protecting) military personnel from certain applications of civil law. SCRA provides protection for servicemen and women and their families on the theory that a military member should be able to go about his duties without concern about litigation. SCRA was last amended during Operation Desert Storm in 1991.
SCRA, which was enacted on the eve of World War II when the United States enacted its first peacetime draft, protects servicemen 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 enlist SCRA to postpone a legal action 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 stay the proceedings for at least 90 days (upon application of the Service Member or his 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."
If the service member is still on active duty, the decree must address the requirements of due process under the Soldiers’ and Sailors’ Civil Relief Act. Thus, a Service Member can easily use SCRA to contest a divorce he or she does not want. For example, a spouse-husband is on the ground in Afghanistan. His military service would probably have a material effect on his ability to be present for the divorce. In this case, a stay would probably be granted, but this does not mean that a civilian spouse can never get a divorce, or that her husband never has to show up. Even if a stay is granted, it only postpones the litigation; 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.
Unless a court finds that a military spouse’s ability to defend or pursue action is not materially affected by his military duties, a SCRA stay can last for the duration of his service plus sixty days. According to one source, "[t]he majority of service members cannot prove they are materially affected as a result of their military service when a divorce is filed against them; however, overseas duty could allow the service member to obtain a stay of proceeding temporarily."
SCRA does not say that a military member doesn’t have to show up for trial. A court can stay (or hold off) the trial if a party’s military service has a material effect on his ability to defend the litigation, in this case, the divorce; but a court can also deny any stay requested if military service has no material effect on his ability to defend against the litigation. In many cases, courts ruled against an argument using SCRA to postpone civil litigation unreasonably or defeat it entirely.
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.
All divorce actions require that the military status of the respondent be documented in compliance with SCRA. This includes divorces where the respondent is missing. At the least, however, at some point in the divorce process, the civilian spouse must authenticate the military status of the other spouse; that is, whether he or she is covered by SCRA.
Very often in divorces, the military spouse waives his right to SCRA protection from litigation. This always true in uncontested divorces.
In addition, SCRA provides other protections to military families, including caps on interest rates on debt obligations entered before beginning active duty, restrictions from eviction, and special conditions for the termination of property and automobile leases.
Common Questions and Answers
Q. How should the SCRA’s protection be addressed by a spouse seeking a divorce?
A. Delays, particularly when the military spouse is overseas on a deployment, can work to the advantage of both spouses, particularly if the military spouse is approaching the end of a normal military career -- 20 years. Postponement may be in the best interest of the civilian spouse. It may be in the best interest of both spouses to have an continuous period of military service. In addition, the uninterrupted continuation of any other military benefits may be advantageous to the civilian spouse.
Q. Does a military spouse retain military benefits after a divorce?
A. No, the spouses of non-career Service Members lose their benefits, but it depends upon the number of years of service the military spouse has and the number of years of marriage during this service.
In a typical situation -- a military spouse who is the husband, a civilian spouse who is the wife. The military spouse is in his first enlistment and is no where near normal retirement. When the couple divorces, the wife is no longer a military spouse, so she loses her military entitlements that include base housing or housing allowance, commissary privileges, post exchange (or PX) privileges, and on-base or post medical care. The so-called Army wife -- a woman with a long-term marriage to a 20-year career soldier -- may be able to retain her rights to future medical care and insurance, just not on base. Under USFSPA, former military spouses are eligible for full medical, commissary and exchange privileges if 1) the spouses were married for a least 20 years; 2) the military spouse performed at least 20 years of creditable service for retired pay and 3) the military service and the marriage overlaps for 20 years. Reduced benefits are also available under certain conditions, for example, when the marriage is less than 20 years old.
Q. Where can a Service Member learn more about SCRA?
A. To learn more about SCRA, see 50 U.S.C.A. App. 501 et seq, or go the the web at www.defenselink.mil/specials/ReliefAct/index.html
Useful Online Tools
Resources & Tools
PROPERTY DIVISION -- The Uniform Services Former Spouse Protection Act (USFSPA) allows state courts to treat disposable retired pay either as property solely of the military member or as property of the member and his spouse. The USFSPA authorizes direct payment of a portion of a military retirees pay to the former spouse and extends some base privileges to certain former spouses. Although up to 50% of a military member’s retired pay may be awarded, state law determines the exact division of the retired pay.
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