A contested divorce may require both spouses to participate in hearings, discovery, settlement discussions, or trial. But what happens when one spouse receives deployment orders or is already deployed when divorce papers arrive?
Deployment does not automatically stop a divorce. However, federal law may allow a servicemember to temporarily pause the case when military duties interfere with the ability to participate.
The Short Answer
A servicemember’s deployment does not automatically put a divorce on hold.
Under the Servicemembers Civil Relief Act (SCRA), a servicemember whose military duties materially affect the ability to appear may be entitled to a stay of the case for at least 90 days if the servicemember follows the statute’s requirements.
The servicemember must generally explain how current military duties prevent participation, state when the servicemember expects to become available, and provide confirmation from the commanding officer that military duties prevent appearance and military leave is not currently authorized.
If military duties continue to interfere after the initial stay, the servicemember can request additional time. An additional stay is not automatically guaranteed, however, and the SCRA does not establish a fixed length for it.
Understanding the Servicemembers Civil Relief Act
The SCRA provides important protections to servicemembers involved in civil court proceedings, including divorce and child-custody cases.
One of those protections is the ability to request a temporary stay when military duties materially interfere with the servicemember’s ability to appear.
If a qualifying request is made, the court must grant an initial stay for at least 90 days. The servicemember must provide:
- Information explaining how current military duties interfere with the ability to appear and when the servicemember expects to become available; and
- Confirmation from the commanding officer that military duties prevent the servicemember from appearing and that military leave is not authorized at that time.
The court may also order a stay on its own.
The SCRA separately protects servicemembers against default judgments when they have not appeared in the case.
A default judgment can occur when a defendant does not respond or appear and the court enters judgment without that defendant participating. Before that happens, federal law requires the court to address whether the defendant is serving in the military.
If it appears that the defendant is in military service, the court cannot enter judgment until it appoints an attorney to represent the servicemember. Depending on the circumstances, the court must also grant a stay of at least 90 days.
What Happens if the Servicemember Does Not Respond?
A court cannot simply ignore the SCRA because a military spouse fails to respond to divorce papers.
Before entering a default judgment, the plaintiff must provide information concerning whether the defendant is in military service. If the defendant appears to be serving, the court must appoint an attorney before entering judgment.
The court must also grant a stay of at least 90 days in certain circumstances, including when:
- the servicemember may have a defense that cannot fairly be presented without their participation; or
- the appointed attorney has made reasonable efforts but still cannot contact the servicemember or determine whether the servicemember has a valid defense.
If a default judgment is entered against a qualifying servicemember, the SCRA may allow the servicemember to ask the court to reopen the judgment.
The servicemember generally must show both that military service materially affected the ability to defend the case and that there is a valid legal defense to at least some part of the action.
The deadline can be short. The SCRA generally makes a request to reopen the judgment to be filed no later than 90 days after the servicemember leaves military service.
Does a Deployment Always Stop a Divorce?
No. The SCRA provides temporary protection when military service interferes with meaningful participation in a case. It does not allow a deployment to stop a divorce indefinitely.
The law also provides special protections involving child custody. For a qualifying deployment under the SCRA, a temporary custody order based solely on deployment cannot last longer than the period justified by that deployment. A court also cannot use deployment, or the possibility of deployment, as the sole reason for permanently changing custody.
State law can provide additional protections.
For example, Maryland has special rules for custody and visitation orders entered because of a parent’s deployment, including protections concerning leave schedules, communication with the child, and expedited review after the servicemember returns.
Virginia likewise requires custody or visitation restrictions based on deployment to be temporary and provides procedures for expedited review after a deploying parent returns. Virginia law may also allow remote participation in certain deployment-related custody proceedings.
So while a deployment may temporarily delay parts of a divorce, it does not necessarily freeze every issue in the case.
Contact Our Military Family Lawyers Today
Divorces in military families are hard and can become complicated quickly, particularly when one spouse serves or is called to active duty. We’ve walked in your boots.
Contact Patriots Law Group today for a confidential consultation with a military family law attorney to learn more about what happens when deployment affects a pending divorce or custody proceeding.