Legal actions where one party is a member of the U.S. Armed Forces can be challenging as they typically implicate specific procedural requirements under federal law. As a result, virtually all civil legal proceedings—including family law cases—naming a military servicemember as a defendant or other responsive party must comply with the federal protections afforded by the Servicemembers Civil Relief Act (SCRA) under Title 50 of the United States Code.
If you are going through a divorce or facing another family law matter involving a military servicemember, you stand to benefit from the experienced legal counsel of an Orange County attorney from Moshtael Family law. With more than 130 years of combined legal experience, our legal team has successfully handled various family law issues, including those concerning the provisions of the SCRA.
General Protections Under the SCRA
Ordinarily, state law governs matters connected with divorce, marriage, and domestic relations. However, when a military servicemember is involved, the federal SCRA comes into play. Under the SCRA, members of the U.S. Armed Forces enjoy certain legal and procedural protections when it comes to legal action taken against them during times of deployment or similar military service.
Among the SCRA’s protections is a requirement for the plaintiff to file an affidavit with the court concerning the nature and extent of the defendant’s military service, or whether the plaintiff can confirm or deny the defendant’s military service. Importantly, it is a crime to file a false affidavit, punishable by criminal fines, and even incarceration in a federal prison.
Additionally, the SCRA provides servicemembers with the following protections:
- Protection against default judgments: When the defendant or other responsive party fails to appear in court to contest the allegations of the plaintiff’s complaint, the court may issue a default judgment in favor of the plaintiff. However, the SCRA provides servicemembers with procedural rights to prevent a court from rendering a default judgment against them due to absence resulting from military service. 50 USCS § 3901.
- Appointed counsel for appearances: The SCRA provides military servicemembers with the right to have counsel appointed to represent them during legal proceedings. A court may not proceed to judgment in the absence of an attorney representing the servicemember. If appointed counsel cannot locate their client, their actions cannot legally bind the absent servicemember. 50 USCS § 3901(b)(2).
- Automatic stay of legal proceedings: If a plaintiff institutes legal action against a defendant who is in military service, the court cannot advance legal proceedings for at least 90 days if the defendant cannot be located and their presence is deemed necessary to effect a defense. 50 USCS § 3932(b).
- Additional stay of legal proceedings: A court may stay legal proceedings upon request by the defendant or their attorney supported by letter explaining how the defendant’s military duty materially interferes with their ability to appear, or a letter from the defendant’s commanding officer that they are not authorized to take military leave to appear for the proceedings. 50 USCS § 3932(d).
- Temporary custody orders: A court may not modify the terms of a child custody order based solely on the servicemember’s absence due to military deployment. The court may issue a temporary order regarding custody of the servicemember’s child during a period of deployment. 50 USCS § 3938.
Get Effective Legal Counsel at Moshtael Family Law
Although military service can be difficult for families, one’s decision to serve our country should not be punished in court. At Moshtael Family Law, our team of attorneys has decades of valuable experience with a broad range of family law disputes, including matters where an active duty member of the military is involved. We are committed to finding a just and fair resolution to your family law dispute, taking in the impact of military service into account.
Please call Moshtael Family Law at or contact our office online today to arrange for an initial consultation about your case. We’re proud to offer military discounts.
