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Family law for military personnel: the federal Servicemembers Civil Relief Act provides special protections for members of the armed forces. To advocate effectively for your military clients in the everyday matters of family law, here's what you need to know.

Article Excerpt
People in the military face unique circumstances that can affect their divorce and other family law cases. For example, one or both spouses may be in service and get transferred to a new location or deployed overseas--complicating any divorce, child support, custody, or other family issues that arise. Especially now, with so many soldiers serving in overseas military conflicts, family law practitioners should be familiar with the federal Servicemembers Civil Relief Act of 2003 (SCRA), which supplants the Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA). (1)

Like its predecessor, the new statute is intended "to provide for, strengthen, and expedite the national defense" by enabling servicemembers "to devote their entire energy to the defense needs of the nation" through "the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service." (2)

The Supreme Court noted, in an oft-quoted passage from a 1943 case addressing the SSCRA's purpose, that liberal construction of the statute served the end of "protect[ing] those who have been obliged to drop their own affairs to take up the burdens of the nation." (3)

Unlike the old law, the SCRA covers all active-duty servicemembers, including reservists and guardsmen serving for more than 30 consecutive days in times of national emergency under 32 U.S.C. [section] 502 (f). (4) It also applies to periods of absence from active duty due to injury, illness, leave, and other lawful causes--and, for reservists and members of the National Guard, to the period between when they receive orders and when they report. (5)

The SCRA offers many options to help you protect your clients' rights, and you should use care and creativity in employing its provisions.

Stay and default

Where is the act most likely to pop up in family practice? Consider a contemporary scenario: A woman waits until the eve of her husband's deployment overseas to file divorce papers, including a request for pendente lite support, exclusive possession of the marital residence, continued insurance coverage, and power of attorney over the husband's affairs. (6) The husband is due to ship out within the week, and he consults you. What do you do?

Section 522 of the SCRA entitles the serviceman to a mandatory 90-day stay of proceedings. To qualify for it, he must alert the court--in writing (which might include e-mail), supported by a commanding officer's statement--that he is on active duty, which will materially affect his ability to defend for a specified period of time during which he cannot take military leave.

He may also seek an extended, discretionary stay if he shows that his military service will continue to affect his ability to defend; if this additional stay is denied, counsel must be appointed to protect his rights. (7) A stay request under the SCRA does not waive any jurisdictional objections or substantive or procedural defenses; (8) nor should it be the basis for an award of attorney fees for dilatory conduct. (9)

These protections substantially clarify the old SSCRA's stayprovisions, under which all stays were discretionary. Also, the old law provided no explicit guidance on the length of a stay or the impact of a stay request on jurisdictional defenses, and that omission created fertile ground for appeal. (10)

What happens if a husband ships out without consulting an attorney or appearing in his wife's action, and in due time she moves...

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