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Ask the Lawyer: Active-duty divorce? Troops can apply for delay under SCRA

Apr. 28, 2011 - 03:48PM   |   Last Updated: Apr. 28, 2011 - 03:48PM  |  
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Lawyer Mathew B. Tully answers your questions.

Q. I am on active duty in Afghanistan and I was just served with divorce papers. Now what?

A. Service members have enough to worry about in a war zone without having to deal with the complexity of a divorce proceeding. That's why the Servicemembers' Civil Relief Act gives military personnel the right to temporarily halt such civil proceedings until they are better positioned to deal with them.

However, the proceeding does not stop automatically. Service members on active duty or within 90 days of leaving active service need to assert their SCRA rights to stop a divorce proceeding.

To qualify for this right, service members must also have formally received divorce papers; verbal notice isn't enough. In addition, the fact that a service member is on active duty is not enough for a court to hit the brakes on a divorce proceeding.

Even if a service member is deployed abroad, opposing counsel may argue — and a court may find — that the service member could use military leave time to make an appearance.

To stop the proceeding, a service member needs to send a letter to the appropriate court explaining his military duties, how these duties prevent him from appearing in court and when he will be able to appear.

Commanding officers also must send a similar letter to the court stating that military duty prevents the service member from appearing and that military leave for such an appearance has not been granted.

The minimum postponement, or stay, that a court could grant under SCRA is 90 days. Service members can apply for an additional stay when the initial one expires, or when it becomes apparent that their military obligations will continue to prevent them from defending against a divorce action.

If the court rejects a stay request, it will appoint counsel for the service member for the divorce case.

This postponement does not mean service members can avoid the divorce forever, nor does it mean they have waived any right to defend themselves in the case. Therefore, it's critical that service members who have received divorce papers contact a matrimonial attorney to review their rights and responsibilities in the proceeding.

Also, if you've been married for nine years, see my June 29, 2009, column about what happens when you have been married for 10 years in the military and get a divorce; at that point a different law, the Uniformed Services Former Spouses' Protection Act, may come into play. Find the article online at www.militarytimes.com/community/ask_lawyer.

A stay of a divorce proceeding may adversely affect service members under the USFSPA.

Mathew B. Tully is an Iraq war veteran and founding partner of the law firm http://www.fedattorney.com/">Tully Rinckey PLLC. 20askthelawyer@militarytimes.com?subject=Ask%20the%20Lawyer:%20Active-duty%20divorce?%20Troops%20can%20apply%20for%20delay%20under%20SCRA%20">Click here to e-mail him. The information in this column is not intended as legal advice.

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