Stays in Divorce Proceedings Involving Service Members

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Stays in Divorce Proceedings Involving Service Members

Pursuant to the Servicemembers Civil Relief Act (“SCRA), active duty military personnel cannot have a default judgment entered against them for failing to respond to a divorce action. The divorce proceeding may be postponed for the entire duration of active service, up to sixty (60) days thereafter. However, this stay can be waived by the active duty military personnel if he/she wishes to proceed with the divorce.

When a service member lacks notice of the proceedings, the SCRA requires a stay (or continuance) of at least 90 days when: 1) the court decides that there may be a defense to the action and such defense cannot be presented in the defendant’s absence; or 2) with the exercise of due diligence, counsel has been unable to contact the defendant (or otherwise determine if a meritorious defense exists). 50 U.S.C. App. § 521(d).

When the service member defendant has notice of the proceeding, a 90-day stay (minimum) applies upon the service member’s request, if the stay request includes two things. The first is a letter or other communication that: 1) states the manner in which current military duties materially affect the service member’s ability to appear; and 2) gives a date when the service member will be available to appear. The second is a letter or other communication from the service member’s commanding officer stating that: 1) the service member’s current military duty prevents appearance; and 2) that military leave is not now authorized for the service member. 50 U.S.C. App. § 522. These two communications may be consolidated into one if it is from the SM’s commander.

As to jurisdiction, servicemembers and their spouses have three choices when it comes to which state to file for divorce.

i. State where the spouse filing resides.

ii. State where the military member is stationed.

iii. State where the military member claims legal residency.

Keywords: Service Members, Stay, Divorce, Servicemembers Civil Relief Act

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