A Husband Refuses a Service of Divorce While Overseas

by Teo Spengler
A member of the military posted overseas has special legal protection against lawsuits.

A member of the military posted overseas has special legal protection against lawsuits.

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A divorce action seeks to settle serious financial and family issues critical to both spouses, and the law requires that you give your spouse official notice of the proceeding. Typically, you provide notice by having a sheriff or process server hand a copy of your divorce papers to your spouse. However, when he is a serviceman on active duty stationed overseas, different rules apply.

Service of Process

Any time you bring a lawsuit, the person you are suing has the right to appear and present his case. Courts require that you arrange to have a copy of court papers delivered to any person you are suing, and this is equally true in a divorce action. While the rules for service vary among jurisdictions, many divorce litigants pay the local sheriff to serve their court papers, while others hire a professional process server to do the job. Whoever serves the papers files a sworn affidavit with the court describing how and when the divorce papers were served. The process is easier when a divorce is amicable, because you can hand your spouse the papers as long as he signs a document stating that he accepts them.

Process

When your spouse is a member of the military posted abroad, the matter of service is more difficult. If the divorce is amicable, your spouse can agree to accept service of process. If he chooses to do so, you mail the papers to him overseas and he returns an affidavit acknowledging service. If he does not agree to this, you can ask military authorities to serve him. However, military commanders have no obligation to serve court papers on a serviceman. Generally they will advise the serviceman of the action and allow him to accept process or decline process. If he declines, you need to find a different method of service.

Service Options

Although in some jurisdictions it is possible for you to petition the court to appoint someone to serve your spouse, this option is generally impractical. The court is unlikely to send a court officer overseas to serve divorce papers and the cost would be prohibitive. Nor will officials of the United States consular service assist in service of legal process on Americans abroad. If you wish to continue pursuing service options, you will have to learn and fulfill the service requirements of the country where your husband is posted or comply with the Hague Convention.

SCRA

Even if you succeed in serving your spouse overseas, he will likely be able to delay the divorce proceedings under the Servicemembers Civil Relief Act of 2003. The SCRA was enacted to prevent military servicemen from being distracted from their duties by court proceedings brought against them. The primary tool provided by the act is suspension of the litigation until the serviceman is able to address the issues. The minimum stay is 90 days and it can be extended by the court indefinitely if the serviceman remains overseas. The SCRA also protects your husband from a default judgment, which is a court order that can be entered against a party who does not appear at a hearing.