Divorce is never easy, but for military families, it can present unique challenges that civilian divorces don’t involve. Active-duty service members face deployments, frequent relocations, and unpredictable schedules that can make it difficult to respond to legal filings or manage court deadlines in divorce or custody cases.
To protect the men and women who serve, Congress enacted the Servicemembers Civil Relief Act (SCRA). This federal law ensures service members can fulfill their military duty without being unfairly disadvantaged in civil legal matters, including divorce and custody cases. When a marriage ends, these protections can also significantly influence the timing and outcome of divorce and custody proceedings and financial decisions.
Understanding the Servicemembers Civil Relief Act (SCRA)
The SCRA is a federal statute that provides legal and financial safeguards to active-duty service members while they are serving.
The goal of the SCRA is to allow individuals in uniform to focus on their military duties without being burdened by unresolved civil disputes back home. In the context of family law, for example, the SCRA ensures that the service member has a fair opportunity to participate in divorce and custody proceedings. For instance, if a deployment or training prevents personal attendance in court, the SCRA allows the service member to request a temporary delay so that decisions aren’t made without their knowledge or input.
SCRA protections don’t create special treatment guaranteeing a particular outcome. Instead, they level the playing field, allowing both spouses to have the opportunity to be heard.
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Divorce Timelines and Court Proceedings
One of the most immediate ways the SCRA affects a divorce is by allowing courts to “stay” or pause proceedings when military duties interfere with a service member’s ability to appear in court. Without this safeguard, a spouse could obtain a default judgment simply because the other spouse was deployed and stationed far from home. A court-ordered stay ensures that both parties can present their cases and respond to filings once the service member is available.
Stays are not indefinite, however. Judges will typically require proof that military service genuinely prevents participation. Moreover, the SCRA sets out specific minimum timeframes for a stay and then lets the judge extend it if the facts warrant it.
How the Initial Stay Works
When military duties prevent the service member from appearing in court due to deployment, training, or an unexpected assignment, the SCRA provides an automatic pause in the case. To trigger this pause, the service member or their attorney must provide the court with two written statements:
- A letter explaining how their current military responsibilities prevent them from attending hearings or meeting court deadlines
- A letter from the service member’s commanding officer confirming that military obligations do not allow them to take leave to appear in court
Once these two pieces of documentation are submitted, the judge is required to grant a temporary halt to the proceedings for at least 90 days. This initial 90-day period is not optional. The court must grant it. During that time, deadlines and hearings are put on hold, giving the service member the breathing room to focus on their military duties without the risk of a default judgment or losing important legal rights.
After the initial 90-day stay has run, an extension can be requested. However, to extend a stay, the process changes somewhat:
- Requesting more time – If military duties are still keeping the service member from participating, they or their attorney can ask the court for an additional stay. That request must once again explain why the duty continues to prevent participation and should include updated confirmation from the commanding officer.
- Judge’s discretion – Unlike the first stay, any extension beyond the initial 90 days is not automatic. The judge has the discretion to grant or deny more time based on the facts presented. If the court denies the request, it must state the reason for the denial in writing.
- Other options if an extension is denied – If the service member still cannot appear and the court refuses a further stay, the SCRA allows the service member to hire an attorney to represent their interests. Additionally, Section 521 of the SCRA requires the court to appoint counsel if it denies a further stay and if the service member is not otherwise represented.
Custody and Visitation Considerations
The Servicemembers Civil Relief Act goes beyond simply pausing a divorce or custody case. It also contains specific safeguards to prevent a parent’s military service from unfairly disrupting the parent-child relationship or leading to the loss of parental rights.
Protection from Default Custody Orders
The court cannot enter a default custody or visitation order against a service member who is unable to appear because of active duty. Before any permanent decision is made, the court must ensure the service member has been given a fair opportunity to participate. The 90-day stay, and any extensions the court grants, are designed to protect against orders being issued when one parent is deployed.
Limits on Permanent Modifications During Deployment
State and federal laws intersect in military divorce and custody proceedings, and courts must consider SCRA’s provisions as well as their own family law statutes. As a result, judges avoid making any permanent custody modifications when a parent is deployed. Temporary orders may be entered to maintain a child’s stability, but long-term arrangements usually wait until the service member can be heard. This prevents a parent from losing custody or parenting time solely because of their military service.
Preserving Parenting Time and Communication
Courts recognize that deployment should never sever a parent-child bond. Temporary orders often include provisions for regular contact – such as scheduled phone or video calls – to preserve the relationship between child and parent when the service member is away. Judges may also build in make-up visitation time once the deployment ends, ensuring the child and parent can reconnect.
Protection from Using Deployment as a Negative Factor
While the SCRA itself is a federal statute, many states have enacted companion laws making clear that deployment or active-duty status cannot be used as evidence that a parent is unfit. These provisions reflect the SCRA’s underlying purpose: a parent should not lose custody rights simply because they are serving their country.
Temporary Caregiving Arrangements
If the service member needs someone to care for the child during deployments, courts will often approve a temporary delegation of parental authority, for example, allowing a grandparent or other trusted relative, to make day-to-day decisions for the child without altering the service member’s underlying custody rights. These arrangements automatically end when the service member returns unless both parents agree otherwise.
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Financial Protections That Could Influence Divorce
The Servicemembers Civil Relief Act also provides a broad set of financial safeguards that could influence how property and debts are addressed during a divorce. These are meant to keep a service member’s assets secure while they fulfill their military obligations and ensure that creditors and landlords can’t take advantage of their absence to accelerate collections or repossessions. And because divorce involves property division, assigning debt responsibility, and negotiating support, these protections can also affect the timing and structure of a marital settlement.
- Foreclosure protection – Mortgage lenders cannot foreclose on a service member’s home without a court order during active duty, even if payments are late. This can delay property division until the foreclosure risk is resolved.
- Repossession rules – Creditors cannot repossess vehicles or other financed property without first obtaining a court order. When a couple is dividing assets and debts, these safeguards can temporarily halt repossession actions, potentially influencing property division and how debt is assigned.
- Lease termination rights – Service members who receive deployment or Permanent Change of Station (PCS) orders can terminate residential leases without penalty. This could affect decisions about housing arrangements and spousal support.
- Interest rate cap – Certain pre-service debts like credit cards or car loans must be reduced to a 6% interest rate while the service member is on active duty. This could potentially change marital debt and spousal support calculations.
While these protections provide service members with stability during active duty, they can also lengthen and complicate some of the financial aspects of a divorce.
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The Impact on Both the Military and Civilian Spouse
The SCRA safeguards are designed to protect service members during active duty. However, these protections can influence both sides of the divorce equation. For the service member, the SCRA provides reassurance that critical rights and assets won’t be affected while they are gone. But for the civilian spouse, these same protections may result in delayed timelines and uncertainty regarding finances and custody arrangements.
Understanding the safeguards under the SCRA helps both parties set realistic expectations and approach negotiations with patience and fairness.
Common Misconceptions About the SCRA
The SCRA provides strong protections for service members, but it can often be misunderstood.
- The SCRA does not stop a divorce indefinitely. It only allows for reasonable delays when active-duty service truly prevents participation, and only temporarily.
- The law doesn’t guarantee a favorable outcome for a service member. It simply ensures that both spouses can be heard fairly.
- Civilian spouses can still request temporary orders for child and spousal support, custody, or visitation to address immediate needs while the case is paused.
In reality, the SCRA is meant to create fairness, not give either side an advantage.
Getting Skilled Legal Assistance
The Servicemembers Civil Relief Act plays a critical role in ensuring that the sacrifices of military service don’t come at the expense of fairness in civil proceedings like divorce and custody. These protections help active-duty service members focus on their mission, but they can also add unique challenges, affecting timelines, custody arrangements, and financial decisions.
If you or your spouse are serving in the military and facing a divorce or custody dispute, you shouldn’t try to navigate this without an experienced legal advocate. The family law attorneys at Melone Hatley, P.C. understand these unique challenges because we work with military families every day.
Whether you are an active-duty service member balancing deployments and court deadlines or the civilian spouse seeking stability for your children, our team knows how to protect your rights and keep your case on track. Schedule a free consultation with one of our Client Services Coordinators online today or call 800-479-8124. Let our dedicated military family law team help you secure the fair resolution and peace of mind you and your family need to move forward.
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