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Protecting those who serve
September 2006 | Volume 42, Issue 9

Family law for military personnel

The federal Servicemembers Civil Relief Act provides special protections for members of the armed forces. To advocate effectively for your military clients in the everyday matters of family law, here’s what you need to know.

William S. Friedlander

People in the military face unique circumstances that can affect their divorce and other family law cases. For example, one or both spouses may be in service and get transferred to a new location or deployed overseas—complicating any divorce, child support, custody, or other family issues that arise. Especially now, with so many soldiers serving in overseas military conflicts, family law practitioners should be familiar with the federal Servicemembers Civil Relief Act of 2003 (SCRA), which supplants the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA).¹

Like its predecessor, the new statute is intended “to provide for, strengthen, and expedite the national defense” by enabling servicemembers “to devote their entire energy to the defense needs of the nation” through “the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.”²

The Supreme Court noted, in an oft-quoted passage from a 1943 case addressing the SSCRA’s purpose, that liberal construction of the statute served the end of “protect[ing] those who have been obliged to drop their own affairs to take up the burdens of the nation.”³

Unlike the old law, the SCRA covers all active-duty servicemembers, including reservists and guardsmen serving for more than 30 consecutive days in times of national emergency under 32 U.S.C. §502(f).⁴ It also applies to periods of absence from active duty due to injury, illness, leave, and other lawful causes—and, for reservists and members of the National Guard, to the period between when they receive orders and when they report.⁵

The SCRA offers many options to help you protect your clients’ rights, and you should use care and creativity in employing its provisions.

Stay and default

Where is the act most likely to pop up in family practice? Consider a contemporary scenario: A woman waits until the eve of her husband’s deployment overseas to file divorce papers, including a request for pendente lite support, exclusive possession of the marital residence, continued insurance coverage, and power of attorney over the husband’s affairs.⁶ The husband is due to ship out within the week, and he consults you. What do you do?

Section 522 of the SCRA entitles the serviceman to a mandatory 90-day stay of proceedings. To qualify for it, he must alert the court—in writing (which might include e-mail), supported by a commanding officer’s statement—that he is on active duty, which will materially affect his ability to defend for a specified period of time during which he cannot take military leave.

He may also seek an extended, discretionary stay if he shows that his military service will continue to affect his ability to defend; if this additional stay is denied, counsel must be appointed to protect his rights.⁷ A stay request under the SCRA does not waive any jurisdictional objections or substantive or procedural defenses;⁸ nor should it be the basis for an award of attorney fees for dilatory conduct.⁹

These protections substantially clarify the old SSCRA’s stay provisions, under which all stays were discretionary. Also, the old law provided no explicit guidance on the length of a stay or the impact of a stay request on jurisdictional defenses, and that omission created fertile ground for appeal.¹⁰

What happens if a husband ships out without consulting an attorney or appearing in his wife’s action, and in due time she moves for a default judgment? The SCRA says that before the court may enter a default judgment, the plaintiff must file an affidavit (or subscribed written statement in any form, certified or sworn to) that the defendant is not in military service and show “necessary facts” to support the affidavit.¹¹ The plaintiff may obtain an acceptable affidavit or certificate from the Department of Defense (DOD) Manpower Data Center. If the plaintiff fails to conduct or prove a DOD search to discover whether the defendant is serving in the military, the court may scrutinize or even discredit the affidavit.¹²

If it appears, from the plaintiff’s affidavit or other circumstances before the court, that the defendant is in the military, the court must appoint an attorney to represent the defendant’s rights, which include applying for a 90-day stay if there is a potential defense or if the defendant cannot be reached; if the attorney cannot locate the servicemember defendant, the attorney’s conduct in the case will “not waive any defense . . . or otherwise bind the servicemember.”¹³ If the defendant’s military status is unclear, the court may require the plaintiff to post a bond to indemnify the defendant for losses sustained if a default judgment is entered but subsequently set aside.¹⁴ These provisions are intended to address concerns that were chronically litigated under the SSCRA, regarding the contents and adequacy of the nonmilitary affidavit and the steps the court must take in response to an unsatisfactory or equivocal affidavit.¹⁵

What if the husband in the example receives actual notice of the default proceedings and calls you to appear for him? He is entitled to apply for a 90-day stay, and discretionary extensions, as if he had appeared in the action.¹⁶

Even if the court enters a default judgment before the husband consults you, the SCRA lets him apply for relief from the judgment up to 90 days after his discharge from military service, upon a showing that he has a meritorious defense and that military service materially affected his ability to defend.¹⁷ This 90-day default-relief window has been held to trump state default-opening timelines, or at least to offer an alternative procedure that state law cannot shorten.¹⁸ Likewise, in interstate support proceedings, SCRA relief from a default support judgment in the responding state has been held to trump the initiating state’s time limits for contesting the registration of a foreign support order.¹⁹

If your client consults you after the 90-day window has expired, he may be stuck, unless you can contest the default proceedings’ validity under state law—on grounds such as lack of jurisdiction, inadequacy of the nonmilitary affidavit, or the court’s failure to adhere to proper procedures in entering the default judgment.²⁰ Efforts to raise issues of SCRA compliance in subsequent federal court proceedings—for example, in defense of federal Child Support Recovery Act proceedings, in actions for due process or SCRA statutory violations under 42 U.S.C. §1983, or in challenges to marital distribution of military pension rights—generally have not been successful.²¹

If the servicemember is the petitioner in a matrimonial or family court proceeding, is he or she entitled to an SCRA stay or relief from default when the other party moves for temporary relief? Notwithstanding earlier statutory language extending the SCRA’s stay and default provisions specifically to “the defendant” who is a servicemember, a 2004 technical amendment clarified that stay protections also extended to servicemember plaintiffs, echoing the sentiment of at least one court that had granted such a stay, drawing on the broader language in the old SSCRA’s stay provisions and on an effective change in the parties’ status based on the civilian defendant’s application for temporary relief.²²

In one default divorce case under the SSCRA where both parties were in the military, the defendant husband retained counsel who failed to appear to defend the default. The court denied the husband’s application for relief from default on the ground that his retention of counsel demonstrated his ability to defend.²³ One might anticipate a similar result under the new SCRA, because it conditions relief from default on a showing of meritorious defense and prior inability to defend.

Child support and custody

The SCRA’s stay and default protections pose special challenges in child support and custody proceedings. Under the old law, courts readily recognized the need to balance servicemembers’ procedural rights against dependents’ rights to adequate care and support during the period of military service, particularly when the dependents were children.²⁴

Consider an example: The parties’ divorce decree provided for joint custody, assigning primary residence with the child’s mother. When her National Guard unit is called to active duty, the father petitions for primary physical custody and relief from his child support obligation. But the mother has executed a military family care plan placing the child with her mother (the child’s grandmother) or new husband—without the father’s knowledge or consent. The mother now applies for a stay in the father’s custody proceeding. What recourse does he have?²⁵

Under the SSCRA’s discretionary stay provisions, the court might have stayed the father’s custody proceeding but awarded him temporary custody, based on an expedited pendente lite custody hearing before the mother’s deployment and/or on substantive state law that presumes a natural parent is entitled to custody unless extraordinary circumstances exist.²⁶ Likewise, if the issue was support, courts routinely granted the military obligor a discretionary stay, subject to an award of temporary child support, which could be determined on papers alone, without a hearing.²⁷

Does the court have the same discretionary power to award interim relief to the civilian parent under the SCRA, with its 90-day mandatory stay provision? At least one court has held that it did not, at least in the custody context, although the grant of a stay in that case was accompanied by assurance that in proceedings before the stay application, the best interests of the child had already been aired.²⁸

Another court, on a child support agency’s petition against the military father, simply refused to grant the stay, concluding that the father had ample time before being called up to gather materials that counsel could present in documentary form.²⁹ Another court did the same in a custody case, concluding that “access to video conferencing equipment” made the servicemember available to appear.³⁰

Other courts have held, however, that the issuance of an SCRA stay does not bar temporary relief for the civilian parent. Thus, a child’s temporary custody is not determined by the happenstance of being with a particular parent or grandparent at the time a stay is requested, particularly if it appears that the servicemember obtained custody of the child by subterfuge or unfair dealing (by holding the child over on visitation, for example).³¹

The courts’ willingness to condition or override an SSCRA or SCRA stay is based on the longstanding principle that both laws function as a shield that can help protect servicemembers from disadvantages arising from military service, but not as a sword to give them unfair advantage over other litigants.³² This principle plays out in a number of circumstances.

One such situation might be the example above, in which a military mother keeps secret a military family care plan—placing her children with her relatives or new spouse—until the eve of her deployment, and then requests a stay in the father’s custody proceeding. Or, in the context of child protective or permanent termination proceedings, a military father may try using the stay to buy time to reinstate a relationship with the child or work on his parenting rŽsumŽ; or, if posted to a noncombat zone, he may keep the children in his care and refuse the mother visitation or information about the child.³³

In such cases, the SCRA’s provision for a short-term 90-day stay, and for appointment of counsel if further stay is denied or default judgment is sought, can effectively limit potential abuse of military status while protecting the servicemember’s legitimate concerns. Also, in balancing servicemembers’ needs against their dependents’ needs, courts may be willing to push the definition of a servicemember’s “availability” under the SCRA’s stay and default provisions, to allow for video or telephone appearances or to consider pendente lite issues, particularly regarding child support, on papers alone.³⁴

However, the new law probably will not offer the interpretive leeway that one court concluded the SSCRA did—that the statute’s procedural protections actually gave rise to “substantive rights” that enabled the servicemember father to obtain visitation for his parents (the child’s grandparents) in his stead and over the objection of the custodial mother while he was posted overseas.³⁵

Other provisions

The SCRA explicitly applies to administrative as well as judicial proceedings—a provision of particular concern in states where child support can be determined administratively.³⁶ For example, if a servicemember can no longer afford support obligations on his or her military salary, the statute offers protection against execution of judgments and orders, including attachments and garnishments.

If a court or administrative agency finds that a servicemember’s ability to comply with a judgment, order, or garnishment is materially affected by his or her military service, it may on its own motion (and must on the servicemember’s motion) stay execution of the judgment, or vacate or stay a garnishment or attachment. This provision applies to judgments entered before and during military service, and it could result in a stay for the duration of military service and 90 days thereafter.³⁷

The SCRA, like its predecessor, also provides for reducing the interest on debts—such as past-due support—incurred before military service, on the servicemember’s application to the creditor with copies of military orders proving length of service. New to the SCRA, however, is the provision that excess interest over the statutory six percent rate is forgiven during the term of service, and periodic payments during the term must be adjusted to reflect the reduction in interest. Both support obligors and support payees should be aware that application for the rate reduction—also available for obligations jointly held by the servicemember and a spouse—may be made during service or within 180 days of discharge.³⁸

As for current support and other obligations, §591 provides for anticipatory relief when the servicemember’s ability to comply—to pay support, taxes, or contractual installment obligations, for example—is materially affected. And for support and other obligations not yet reduced to judgment, not yet brought before a court or administrative agency, or not yet established by order of filiation, the SCRA provision for tolling the statute of limitations applies to actions (except for IRS proceedings) both by and against servicemembers—and so the tolling provision is a mixed blessing for military personnel.³⁹

Family law practitioners concerned with preserving marital assets, satisfying maintenance obligations, or protecting vulnerable defendants should also consider the implications of SCRA provisions. Both servicemembers and dependents—defined to include spouses, children, and others receiving more than half their support from the servicemember for 180 days immediately preceding application for SCRA relief⁴⁰—are afforded protection from eviction from leased premises (at least, premises for which rent does not exceed a cost-of-living adjusted amount based on $2,400 monthly in 2003).⁴¹ Pre-service installment contracts are afforded similar protection: If a servicemember’s ability to pay has been materially affected by military service, such contracts can’t be terminated for nonpayment without a court order.

Servicemembers are also entitled to protection from mortgage foreclosure during military service or within 90 days thereafter, except on a court order or written waiver of SCRA rights.⁴² Upon application to the Department of Defense, qualifying preexisting life-insurance policies will also be protected from rate change, coverage change, and lapse for nonpayment.⁴³

On the other hand, under §535, a servicemember may terminate a residential or motor vehicle lease on notice to the lessor, including a showing that the servicemember received orders for 180 days of deployment or a change of permanent station. Section 538 specifically extends servicemembers’ rights—to relief or protection regarding leases, contracts, or other obligations—to dependents as well. Also, §519 allows personal representatives, including nonattorneys possessing power of attorney, to assert servicemembers’ interests.

The SCRA extends the servicemember’s entitlement to a stay of proceedings to co-debtors or other people primarily or secondarily liable on a servicemember’s obligations.⁴⁴ However, efforts of other self-proclaimed “dependents”—for example, an adult half-brother or an adult child—to assert a servicemember’s rights in order to obtain stays in their own matrimonial, custody, or related proceedings have been roundly rejected.⁴⁵

Together, the SCRA’s procedural and substantive provisions offer the family law practitioner a veritable arsenal of litigation tools intended to protect the servicemember’s relationships and assets without jeopardizing the welfare of dependents, inequitably penalizing creditors, or giving a canny servicemember an unfair advantage. You may find guidance on using these tools in SSCRA case law, but the SCRA reworks many of the old statute’s protections.

Today’s all-volunteer military offers particularly poignant family challenges. To address them, you need to employ the SCRA’s provisions—whether in stays of proceedings; relief from default; relief from current obligations; or protections from eviction, foreclosure, contract obligations, or insurance lapse.

William S. Friedlander is a shareholder in Friedlander & Friedlander in Ithaca, New York.

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1. Soldiers’ and Sailors’ Civil Relief Act of 1940, ch. 888, 54 Stat. 1178 (codified as amended at 50 App. U.S.C. §§501-596 (2003)).

2. 50 App. U.S.C. §502.

3. Boone v. Lightner, 319 U.S. 561, 575 (1943).

4. 50 App. U.S.C. §511(2)(A).

5. Id. §§511(3), 516; see, e.g., Sec’y of Housing & Urban Dev. v. McClenan, 798 N.Y.S.2d 348 (N.Y. Civ. Ct. 2004).

6. See, e.g., Cherubini v. Cherubini, No. 000160/2003, 2003 WL 1389094 (N.Y. Sup. Ct. Feb. 13, 2003); Michael v. Michael, No. E2003-01214-COA-R3-CV, 2004 WL 362348 (Tenn. Ct. App. Feb. 27, 2004); see also Berkheiser v. Berkheiser, No. 851, 1970 WL 8806 (Pa., Lycoming County Ct. Com. Pl. Apr. 8, 1970) (per curiam).

7. 50 App. U.S.C. §522(d).

8. Id. §522(c).

9. See Perez v. Cottrill, No. A04-771, 2005 WL 701701, at *5 (Minn. Ct. App. Mar. 29, 2005).

10. See Cherubini, No. 000160/2003, 2003 WL 1389094 (construing 50 App. U.S.C. §521); Henneke v. Young, 761 N.E.2d 1140 (Ohio Ct. App. 2001); Phelps v. Fowler, 668 N.E.2d 558, 561-62 (Ohio Ct. App. 1995).

11. 50 App. U.S.C. §521(b)(1)(A), (b)(4).

12. See, e.g., McClenan, 798 N.Y.S.2d 348.

13. 50 App. U.S.C. §521(b)(2), (d).

14. Id. §521(b)(3).

15. See, e.g., Palisades Acquisition, LLC v. Ibrahim, 812 N.Y.S.2d 866, 868 (N.Y. Civ. Ct. 2006); Citibank, N.A. v. McGarvey, 765 N.Y.S.2d 163 (N.Y. Civ. Ct. 2003); Murdock v. Murdock, 526 S.E.2d 241 (S.C. Ct. App. 1999); see also Michael, No. E2003-01214-COA-R3-CV, 2004 WL 362348.

16. 50 App. U.S.C. §521(f).

17. Id. §521(g).

18. See, e.g., In re Marriage of Thompson, 666 N.W.2d 616, 618 (Iowa Ct. App. 2003); In re B.T.T., 156 S.W.3d 612, 614 (Tex. App. 2004); Winship v. Gargiulo, 761 S.W.2d 301 (Tex. 1988) (per curiam).

19. See, e.g., In re B.T.T., 156 S.W.3d 612, 614.

20. Compare Collins v. Collins, 805 N.E.2d 410 (Ind. Ct. App. 2004) (denying motion to vacate judgment based on SSCRA when filed more than 90 days after termination of military service), with McClenan, 798 N.Y.S.2d 348 (concluding stay remains in force in light of procedural inadequacies), and Wagner v. Wagner, 887 A.2d 282 (Pa. Super. Ct. 2005) (invalidating judgment based on lack of jurisdiction).

21. See, e.g., United States v. Hampshire, 95 F.3d 999, 1005 (10th Cir. 1996), cert. denied, 519 U.S. 1084 (1997); Scheidegg v. Dep’t of Air Force, 915 F.2d 1558, at *2 (1st Cir. 1990) (per curiam); Adkins v. Rumsfeld, No. 1:04CV494 (JCC), 2005 WL 2593450 (E.D. Va. Oct. 13, 2005); Selvera v. Selvera, No. Civ. A. SA01CA1098EP, 2003 WL 721449 (W.D. Tex. Jan. 31, 2003).

22. See Dilley v. Dilley, No. CH04-195, 2004 WL 2756291 (Va., Shenandoah County Cir. Ct. Nov. 2, 2004).

23. Michael, No. E2003-01214-COA-R3-CV, 2004 WL 362348, at *3.

24. See, e.g., Cherubini, No. 000160/2003, 2003 WL 1389094; Kelley v. Kelley, 38 N.Y.S.2d 344 (N.Y. Sup. Ct. 1942); see also Lebo v. Lebo, 886 So. 2d 491 (La. Ct. App. 2004); Henneke, 761 N.E.2d 1140.

25. See Diffin v. Towne, 787 N.Y.S.2d 677 ( N.Y. Fam. Ct. 2004); see also Ex parte K.N.L., 872 So. 2d 868 (Ala. Civ. App. 2003); In re Marriage of Grantham, 698 N.W.2d 140 (Iowa 2005).

26. See, e.g., In re Marriage of Grantham, 698 N.W.2d 140; Diffin, 787 N.Y.S.2d 677; Davis v. Davis, 29 P.3d 676 (Utah Ct. App. 2001); see also Cherubini, No. 000160/2003, 2003 WL 1389094; Kelley, 38 N.Y.S.2d 344.

27. See, e.g., Cherubini, No. 000160/2003, 2003 WL 1389094; Kelley, 38 N.Y.S.2d 344; Shelor v. Shelor, 383 S.E.2d 895 (Ga. 1989).

28. See, e.g., Lackey v. Lackey, 278 S.E.2d 811 (Va. 1981).

29. Krutke v. Krutke, 693 N.W.2d 147, at *2 (Wis. Ct. App. 2005).

30. Wagner, 887 A.2d 282, 284.

31. See, e.g., Lenser v. McGowan, 191 S.W.3d 506, 507 (Ark. 2004) (“We hold that the SCRA provides a stay of the domestic relations case but did not prevent the circuit court from entering a temporary order of custody.”); cf. George P. v. Super. Ct., 24 Cal. Rptr. 3d 919, 924 (Ct. App. 2005) (even if 90-day stay is mandatory, additional stay is discretionary and subject to denial for want of legitimate defense).

32. See Boone, 319 U.S. 561, 575; see also Lenser, 191 S.W.3d 506, 510-11; In re Marriage of Grantham, 698 N.W.2d 140.

33. See, e.g., Ex parte K.N.L., 872 So. 2d 868; Lenser, 191 S.W.3d 506; George P., 24 Cal. Rptr. 3d 919; Louis J. v. Super. Ct., 127 Cal. Rptr. 2d 26 (Cal. Ct. App. 2002); In re Grantham, 698 N.W.2d 140; Diffin, 787 N.Y.S.2d 677.

34. See, e.g., In re Diaz, 82 B.R. 162 (Bankr. M.D. Ga. 1988); Foster v. Alexander, 431 S.E.2d 415, 416 (Ga. Ct. App. 1993); Wagner, 887 A.2d 282; see also Krutke, 693 N.W.2d 147.

35. See In re Marriage of Sullivan, 795 N.E.2d 392, 396 (Ill. App. Ct. 2003).

36. See, e.g., Letter from Cal. Dep’t of Child Support Servs., to All IV-D Directors et al., CSS Letter 04-24 (Nov. 2, 2004), available at www.childsup.cahwnet.gov/pub/policy/css/2004/CSS04-24.pdf (last visited July 25, 2006).

37. 50 App. U.S.C. §524.

38. Id. §527.

39. Id. §526.

40. Id. §511(4).

41. Id. §§531, 532; cf. McClenan, 798 N.Y.S.2d 348; Balconi v. Dvascas, 507 N.Y.S.2d 788 (N.Y., Rochester City Ct. 1986).

42. 50 App. U.S.C. §533.

43. Id. §§541-49.

44. Id. §513.

45. See, e.g., In re Cockerham, 336 B.R. 592 (592) (Bankr. S.D. Ga. 2005); In re Adoption of CF, 120 P.3d 992 (Wyo. 2005).

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