This article explains several aspects of the Service Member’s Civil Relief Act and how they affect the rights of military personnel and their families.
The conflict in the middle east placed serious demands on our nation’s armed forces, as more and more National Guard and Reserve Service Members were called to active duty. Thus, family law attorneys are more likely to see military issues in their office.
For over 60 years, Service Members have been protected by the Soldiers’ and Sailors’ Civil Relief Act. The act limited legal actions against Service Members off fighting or otherwise engaged in active military duties, thus making it difficult to defend a lawsuit. In 2003 the Soldiers’ and Sailors’ Civil Relief Act was replaced by the “Service Members Civil Relief Act” (SCRA), which is a complete revision of the old act and extends many of its protections. The provisions of the new act most important to family law attorneys are discussed below.
The new act extends protection to National Guard members called to active duty for 30 days or longer pursuant to any military action specified by the President or the Secretary of Defense.
50 U.S.C. App. § 511(2)(A)(ii).
Additionally, the new act expands a Service Member’s right to ask for a stay of legal proceeding, including administrative hearings. When a Service Member lacks notice of the proceedings, the new act requires a stay (or continuance) for at least 90 days while the court determines if there is a defense to the action and that defense cannot be adequately presented without the member present, or with the exercise of due diligence, counsel has been unable to contact the Service Member (or otherwise determine if a meritorious defense exists).
50 U.S.C. App. § 521(d).
When the Service Member has notice of the proceeding, the 90-day stay applies (upon the Service Member’s request) if the request includes two things. The first is a letter or other communication stating the manner in which the member’s duties materially affect the ability to appear, and a date when the Service Member will be available. The second is a letter or other communication from the Service Member’s commanding officer stating that the Service Member’s current military duty prevents appearance, and that leave is not currently authorized for the Service Member.
Consider the impact of the stay provision in family law cases. Assume a custodial mother receives orders to report for duty in Afghanistan, and she intends leaving the parties’ child with her mother in Florida. How is father to obtain custody when mother’s lawyer imposes a stay request to stop the litigation? If mother has executed a Family Care Plan (FCP), which is required by military regulations, giving custody of the child to maternal grandmother, will that document overcome a court order transferring custody to father? Can the court even enter such a custody order given the stay and default provisions of the SCRA?
Compare the result in Lenser v. Lenser, 358 Ark. 423, 191 S.W.3d 506 (sustaining the Court’s order granting a stay to the Service Member, and awarding custody to the Service Member’s mother) with In re Marriage of Grantham, Iowa Ct.App., Nov. 15, 2004, No. 03-2100; 2004 Iowa App. LEXIS 1257 (denying a stay to the Service Member and upholding the judge’s grant of custody to mother when the mobilized father requested a stay to keep physical custody with his own mother).
What would happen in a California Court? See George P. v. Super. Ct. (2005) 127 Cal.App.4th 216, 24 Cal.Rptr.3d 919, where the Court held that granting an additional stay under the Service Members Civil Relief Act is discretionary, and it may be denied if the member’s ability to appear and take part in the civil action is not adversely affected by his or her military duties.
Here are some common questions and answers:
Q. Is the Civilian spouse entitled to child and spousal support from the Service Member?
A. Service members are subject to the same civil and criminal laws as civilians. Under some circumstances, there may be a military regulation allowing or even compelling the Service Member to return to the United States. For example, there is a regulation dealing with paternity and non-support cases, which authorizes leave to the Service Member.
Q. How should the Service Member’s Civil Relief Act’s protection be addressed by a spouse seeking a divorce?
A. Consider that delays, particularly when the military spouse is deployed overseas, can work to the advantage of both spouses, particularly if the military spouse is approaching the end of a normal military career after 20 years. Postponement may be in the best interest of the civilian spouse. It may be in the best interest of both spouses to have a continuous period of military service. In addition, the uninterrupted continuation of any other military benefits may be advantageous to the civilian spouse.
Q. Does a military spouse retain military benefits after a divorce?
A. No, the spouse of a non-career Service Member loses benefits, but it depends upon the number of years of service the military spouse has and the number of years of marriage during the service. In a typical situation the military spouse is the husband and the civilian spouse is the wife. The military spouse is in his first enlistment and is no where near normal retirement. When the couple divorces, the wife is no longer a military spouse, so she loses her military entitlements, including base housing or housing allowance, commissary privileges, post or base exchange (PX/BX) privileges, and on-base medical care. The so-called Army wife — a woman with a long-term marriage to a 20-year career soldier — may be able to retain her rights to future medical care and insurance, just not on base. Under USFSPA, former military spouses are eligible for full medical, commissary and exchange privileges if 1) the spouses were married for a least 20 years; 2) the military spouse performed at least 20 years of creditable service for retired pay and 3) the military service and the marriage overlaps for 20 years. Reduced benefits are also available under certain conditions, for example, when the marriage is less than 20 years old.
Q. Where can a Service Member learn more about SCRA?
A. To learn more about SCRA, see 50 U.S.C.A. App. 501 et seq, or go the web at www.defenselink.mil/specials/ReliefAct/index.html