How do you handle a military divorce during “time of war”? What if a soldier, sailor, marine, airman or coast guardsman that is a respondent in a divorce or child custody/support/visitation suit is in a hostile fire or war zone? If a party serves that service member, can he or she still get a default divorce if that soldier does not answer the suit within the time allowed? If the respondent is a Reservist on active duty, does he or she have to be treated just like an active duty service member? Why are military respondents entitled to special treatment by the court system anyway? These are just a few of the questions which face parties who engage in family law litigation during times of war.
To understand the answers to these questions, it is necessary to have at least a brief overview of the Soldiers’ and Sailors’ Civil Relief Act (“the Act”), 50 U.S.C.A. §501, et seq., and an understanding as to why the Act was enacted in the first place. The express purpose of the Act is to be liberally construed to temporarily suspend civil suits of all kinds that may be brought against the service member if it might adversely prejudice or affect his or her civil rights while they are required to be in a foreign state or country in defense of our system of government, including the right to have disputed legal matters timely and efficiently decided in a court of law.
It is important to understand that the Act does not prevent suits against service members. They can still be sued and can still lose their lawsuits. Nor does the Act extinguish the liabilities or obligations of service members. It does not apply if the divorce petitioner or movant in a custody/support/visitation suit can prove that the service member is not or is no longer materially impaired or materially affected by reason of the service member’s military service.
Who is protected by the Act? Persons in the military service on active duty with the Army, Navy, Marine Corps, Air Force, Coast Guard, and Officers of the Public Health Service detailed for the Army or Navy. The Act applies to draftees as well as career personnel and includes Reservists on active duty for training, annual training or recalled to active duty for a term (regardless of the duration thereof). Less obvious is the protection afforded to persons who are primarily or secondarily liable with a service member, including partnerships, corporations, and any other form of business association. The Act even extends protection to dependents of a service member as to rent, installment contracts, mortgages, liens, assignments and leases.
Who is not protected? An active duty service member who is absent without authorized leave, confined under sentence of a courts-martial, or a deserter. Nor is protection afforded to retired or reserve personnel not on active duty or to civilian employees of or accompanying one of the armed services.
When and to what does the Act apply? The Act permits the delay of civil court proceedings where military service prevents the service member party from asserting or protecting a legal right and the request for a stay of the proceedings can be made at any stage of the proceedings as long as it is made within 60 days of the service member’s release from active duty. The maximum duration of the stay is the period of active service plus 3 months after discharge from active duty. To be entitled to a stay, the service member must prove, and the court must find, that the service member’s ability to participate in the suit is materially affected by reason of the service member’s military service. The key element of proof is to prove (or disprove) that the service member’s military duty materially affects (or affected) the service member’s ability to be present in court and/or meaningfully participate in the court proceedings.
Default Judgments. To be entitled to a default judgment when a defendant is in the military, the petitioner must first request the court to appoint an attorney to represent the service member defendant. This court-appointed attorney has no authority to act for the service member defendant other than to attempt to obtain a stay or take any other actions deemed appropriate to protect the service member’s rights. The appointed attorney cannot waive any of the service member’s rights.
If the service member is denied a stay or a default judgment is otherwise entered against the service member during the service member’s term of service, or within 30 days thereafter, and the petitioner fails to comply with the provisions of the Act, the service member can set the judgement aside and obtain a new trial if the service member can prove that his or her military service materially affected his or her ability to defend against the suit and the service member defendant has a meritorious defense to all or part of the original cause of action.
The art of war (and litigation) requires a thorough understanding of the rules of engagement. As always, consult with experienced and competent counsel before stepping on the battlefield.