The Servicemembers Civil Relief Act (SCRA) and Divorce: Legal Protections for Military Personnel

Divorce is a challenging process for anyone, but when one or both spouses serve in the military, additional legal complexities arise. Active-duty service members face unique difficulties, such as deployments, frequent relocations, and the challenge of responding to legal proceedings while fulfilling their duties. Recognizing these challenges, the Servicemembers Civil Relief Act (SCRA) provides legal protections that help military personnel navigate family law matters, including divorce and custody disputes, without being at an unfair disadvantage.

Understanding how the SCRA impacts divorce proceedings is essential for both service members and their spouses. Speak to a Boynton Beach military divorce lawyer to discuss how the SCRA affects military divorces, including protections against default judgments, postponements, and other legal considerations that service members should be aware of.

What Is the Servicemembers Civil Relief Act (SCRA)?

The Servicemembers Civil Relief Act (SCRA) is a federal law designed to provide financial and legal protections to active-duty military personnel. The law applies to:

• Active-duty members of the Army, Navy, Air Force, Marine Corps, Coast Guard
• Reservists and National Guard members on active-duty orders
• Commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration (NOAA) on active duty

The primary purpose of the SCRA is to prevent service members from being disadvantaged in legal and financial matters due to their military service. In the context of divorce, the SCRA protects service members from default judgments and allows them to request a stay (postponement) of court proceedings when their military duties interfere with their ability to participate.

How the SCRA Protects Military Personnel in Divorce Cases

Protection Against Default Judgments

One of the most significant protections under the SCRA is the prohibition of default judgments against service members who fail to respond to a divorce petition. In civilian divorces, if one spouse fails to respond within a certain timeframe, the court may issue a default judgment, granting the other spouse’s requests without further input.

Under the SCRA (50 U.S.C. § 3931), if a service member does not appear in court due to military service, the court cannot enter a default judgment unless it first appoints an attorney to represent the absent service member. This attorney’s role is to ensure that the service member’s rights are protected, and if necessary, request a delay in the proceedings until the service member can adequately participate.

Right to Request a Stay of Proceedings (Postponement)

Military service often makes it difficult for a service member to participate in divorce proceedings, particularly when deployed or stationed overseas. To address this issue, the SCRA (50 U.S.C. § 3932) allows active-duty military personnel to request a stay of proceedings if their service prevents them from responding to court actions.

To obtain a stay, the service member must:

• Provide a written statement explaining how their military duties prevent them from appearing in court.
• Obtain a letter from their commanding officer verifying that military service prevents participation in the case.

If approved, the court must grant an initial stay of at least 90 days. After that period, the service member may request an additional stay, although it is at the judge’s discretion whether to grant further delays.

Other Key Legal Considerations in Military Divorces

Jurisdiction and Filing for Divorce

Jurisdiction is a critical issue in military divorces because service members may be stationed in multiple locations throughout their careers. Where a divorce is filed matters, as different states have different laws regarding property division, alimony, and child custody.

Generally, military divorces can be filed in:

• The state where either spouse resides
• The state where the service member is stationed
• The state where the service member claims legal residency (home state of record)

Choosing the right state can have significant legal and financial implications, so service members should consult an experienced attorney to determine the best jurisdiction.

Division of Military Pensions and Benefits

Military pensions and benefits are often major assets in a divorce, and special rules apply to their division. The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows state courts to treat military retirement pay as divisible marital property. However, certain conditions must be met:

• 10/10 Rule: If the marriage lasted at least 10 years, and the service member performed at least 10 years of creditable military service during the marriage, the former spouse may receive direct pension payments from the Defense Finance and Accounting Service (DFAS).
• Less than 10 Years: If the marriage lasted less than 10 years, the former spouse may still be entitled to a portion of military retirement, but it must be paid directly by the service member rather than DFAS.

Other benefits, such as TRICARE health insurance, commissary privileges, and survivor benefits, may also be available to former spouses under specific conditions.

Child Custody and Support in Military Divorces

Child custody disputes can be complicated in military divorces, especially when deployments, relocations, or long-distance parenting are involved. Courts will always prioritize the best interests of the child, but they must also consider the unique challenges of military service.

• Service members cannot be denied custody or visitation solely because of military duties.
• A Family Care Plan (FCP) is often required to outline custody arrangements during deployments.
• Child support is determined based on state guidelines, but military regulations ensure service members fulfill their financial obligations to their children.

What to Do If You’re a Service Member Facing Divorce

If you are an active-duty service member facing divorce, it’s crucial to understand your rights under the SCRA and other military-specific laws. Here’s what you should do:

• Consult a Family Law Attorney – A lawyer experienced in military divorces can help you navigate jurisdiction, division of benefits, and child custody.
• Invoke SCRA Protections – If you’re deployed or unable to participate in court proceedings, file for a stay of proceedings to postpone legal action.
• Understand Your Benefits and Obligations – Military pensions, child support, and custody issues require careful planning.

For military spouses, understanding how SCRA impacts divorce timelines and legal processes is also essential for managing expectations and ensuring fair treatment.

Contact the Law Offices of Taryn G. Sinatra, P.A.

Divorces involving active-duty military personnel come with unique legal challenges, but the Servicemembers Civil Relief Act (SCRA) provides important protections. From preventing default judgments to allowing for court delays, the SCRA ensures that service members are not unfairly disadvantaged in legal proceedings.

Additionally, factors such as jurisdiction, military pensions, child custody, and support must be carefully considered in any military divorce. Whether you are a service member or the spouse of a service member, seeking legal guidance is crucial to protecting your rights and securing a fair outcome.

At the Law Offices of Taryn G. Sinatra, P.A., we understand the unique complexities of military divorce and family law issues. Whether you’re a service member seeking SCRA protections or a military spouse navigating the divorce process, our experienced team is here to help.

Contact us today for a consultation and let us assist you in protecting your rights during this challenging time.

Sources:

myarmybenefits.us.army.mil/benefit-library/federal-benefits/servicemembers-civil-relief-act-(scra)?serv=122

law.cornell.edu/uscode/text/50/3931

law.cornell.edu/uscode/text/50/3932