Replying for a Contested Divorce While in the Military

by Heather Frances J.D. Google
Contesting a divorce in the military is difficult but not impossible.

Contesting a divorce in the military is difficult but not impossible.

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Being in the military creates special difficulties in many civilian legal situations, including divorce. A contested divorce often requires court hearings, but you may not be able to travel from your duty station to the hearings, especially if you are deployed overseas. However, federal law has some special protections to improve your ability to participate in the divorce proceedings.

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Service Issues

If you file for divorce, you consent to the state court’s jurisdiction, which means you agree that the state court can decide your divorce. However, if your spouse is the one who files, she must prove to the court that it has jurisdiction over you, usually accomplished if she qualifies to file and properly serves you with the divorce papers. In foreign countries or on ships, a process server cannot simply gain access to serve you papers, and your spouse may need to coordinate with your commanding officer to serve you. Serving papers can take considerably more time than in a civilian divorce, and if you are overseas, it may be impossible for your spouse to serve you until you return.

Servicemembers Civil Relief Act

The federal Servicemembers Civil Relief Act provides special protections to military members in a variety of legal situations, including divorce. Under SCRA, you don’t have to respond as quickly as you normally would. You can request a stay, or postponing, of divorce proceedings for 90 days to allow you more time to respond. The stay is automatic if you request it, and the judge can provide an even longer stay since there is no limit on how long the stay can be. You must explain to the court that your military duty prevents your participation, and you must give the judge an estimated date when you will be available. For example, if you are unable to participate because you are deployed, the judge can stop the proceedings until you return home.

Distance Issues

Even if your military duty does not prevent you from participating, it can be logistically difficult to contest a divorce while you are in the military. For example, if you are stationed in Virginia but your spouse lives in Kansas and files for divorce there, it can be difficult for you to appear in court or file the appropriate paperwork from such a distance. Sometimes, the court will allow you to “appear” at a hearing by telephone.

Local Representation

If you choose not to request a 90-day stay under SCRA, or if that stay has expired, you can hire an attorney in the state where your spouse filed for divorce. Your branch of service’s legal assistance office may be able to help, too. Your attorney can appear in court on your behalf and file your replies to the court as your representative. With an attorney there to represent your interests, you may be able to contest the divorce without appearing in person.