Military Divorce: Protection During Active Duty

- Gary E. Williams

If you are in the military, or married to a service member, it is important to understand valuable protections provided by federal law to those actively engaged in service to our country.

Reaching a decision to divorce is a difficult process. Oftentimes when that point is reached, one spouse or the other may want to move forward without delay. The sooner a divorce begins, the sooner it will end. Not so with military divorce.

Among other protections, the Servicemembers’ Civil Relief Act (SCRA) provides a buffer against legal actions for men and women on active duty in branches of the military including the Navy, Marine Corps., Army and certain members of the National Guard and other agencies.

With the intent of allowing service members to focus on their job and not a divorce proceeding, SCRA requires specific actions be taken if an attempt is made to enter a default judgment against a service member on active duty.

In the case of a spouse who has filed for divorce while their spouse is deployed, the court requires the following:

  • Prior to entry of a default judgment, an affidavit must be filed that notes whether the defendant is on active military duty
  • If a defendant is in the military, a default judgment cannot be entered without appointment of counsel for the defendant
  • A stay of proceedings can be entered by the court on behalf of the service member
  • A default judgment inappropriately entered against a member of the military on active duty may be set aside
  • A service member can waive a stay of proceedings and allow the divorce to proceed

Most divorces are not simple, especially a military divorce. Always get good legal advice if involved in the military and considering divorce.