Military service demands immense personal sacrifice, often requiring service members to prioritize duty over personal matters, sometimes with little notice and in locations far from home. Recognizing that these unique demands could place active duty personnel at a significant disadvantage in civil legal proceedings, Congress enacted the Servicemembers Civil Relief Act (SCRA). This powerful federal law provides a range of protections, acting as a legal shield to ensure that those serving our country are not unfairly penalized in lawsuits filed while they are focused on their mission.
In the context of a Florida divorce, the SCRA plays a critical, and often misunderstood, role. For the service member, it can offer crucial breathing room, potentially delaying proceedings when military duties genuinely interfere with their ability to participate. For the non military spouse seeking to move forward with the divorce, the SCRA can feel like an insurmountable roadblock, creating frustrating delays and uncertainty.
Understanding what the SCRA is, what protections it actually offers, what it requires of the service member, and how it interacts with Florida divorce law is essential for both parties. It is not an automatic “get out of divorce free” card, nor is it an insignificant hurdle. Navigating SCRA issues requires careful legal strategy, whether you are the service member invoking its protections or the spouse responding to a request for delay. Missteps can be costly, making the guidance of an experienced Tampa military divorce lawyer invaluable.
What is the Servicemembers Civil Relief Act (SCRA)?
The SCRA (50 U.S.C. §§ 3901 et seq.) is a federal law designed to postpone or suspend certain civil obligations – including lawsuits, financial contracts, and more – for active duty service members. Its purpose is to enable service members to devote their full attention to military duties without the added stress and distraction of facing legal battles back home where they may be unable to adequately respond or defend themselves.
The SCRA applies broadly to:
- Active duty members of the Army, Navy, Air Force, Marine Corps, and Coast Guard.
- Reservists and National Guard members called to active duty.
- Commissioned officers of the Public Health Service and NOAA.
It covers a wide range of civil actions, but in the family law context, its most significant impacts are on stays of proceedings and protections against default judgments.
The “Stay” of Proceedings: Delaying the Divorce Battle (Section 3932)
Perhaps the most well known, and often most contentious, SCRA protection in divorce cases is the stay of proceedings. A “stay” is a temporary halt or postponement of the legal action. The SCRA allows a service member involved in a civil lawsuit (including divorce) to request a stay if their military service requirements “materially affect” their ability to appear and defend their case.
What Does “Materially Affect” Mean? This is the critical legal standard. It is not enough for the service member to simply be on active duty. They must demonstrate how their specific duties genuinely prevent them from participating in the divorce case at that time. Examples include:
- Being deployed overseas, particularly to a combat zone or remote location with limited communication.
- Being involved in critical pre deployment training or field exercises.
- Being stationed on a ship at sea with no reliable access to counsel or communication.
- Having military duties that simply leave no time to consult with a lawyer, gather documents, or prepare a defense.
The Mandatory Initial Stay (90 Days): If a service member makes a proper application for a stay, the SCRA mandates that the court must grant an initial stay of at least 90 days.
To get this mandatory stay, the service member (or their attorney) must submit two things to the court:
- A Letter (or other communication): Stating how their current military duties materially affect their ability to appear/participate.
- A Letter (or other communication): From their commanding officer (CO) stating that the service member’s current military duty prevents their appearance and that military leave is not authorized at that time.
Important Note: The CO’s letter does not need to agree that the duties materially affect the case – that is the service member’s assertion. The CO simply verifies the duty prevents appearance and leave is not authorized.
If these requirements are met, the 90 day stay is mandatory. The judge has no discretion to deny it. A knowledgeable Tampa military divorce lawyer representing a service member will ensure this application is made correctly.
Additional Stays (Discretionary): After the initial mandatory 90 day stay expires, the service member can request additional stays. However, these further stays are not automatic. They are granted at the court’s discretion.
The service member must re apply, again demonstrating how their ongoing military duties continue to materially affect their ability to participate. The non military spouse, through their Tampa military divorce lawyer, has the right to oppose these additional stays. They can present evidence suggesting the service member could participate (e.g., they have access to email, video conferencing is possible, they have obtained local counsel) or that further delay would significantly prejudice the non military spouse or children (e.g., delaying urgent financial support or custody decisions).
The court will weigh the service member’s continued need for protection against the other party’s right to have the case resolved in a timely manner.
A Stay is Not Dismissal: It is crucial to understand that a stay does not dismiss the divorce case. It merely pauses it. Once the service member’s period of unavailability ends (e.g., they return from deployment), the stay will be lifted, and the case will proceed. The SCRA provides temporary relief, not permanent immunity.
Default Judgment Protection: Preventing Unfair Outcomes (Section 3931)
Another cornerstone of the SCRA is its protection against default judgments. A default judgment occurs when one party files a lawsuit, properly serves the other party, and the other party simply fails to respond or appear in court. In a civilian case, the court can then enter a judgment granting the filing party everything they asked for, without hearing the absent party’s side.
The SCRA recognizes that a service member’s failure to respond might be due to their military duties, not neglect. Therefore, it imposes specific requirements on courts before a default judgment can be entered against an absent service member.
The Affidavit Requirement: In any civil case where a defendant has failed to appear, the plaintiff (the person who filed the case) must file an affidavit with the court stating one of the following:
- That the defendant is in military service.
- That the defendant is not in military service.
- That the plaintiff is unable to determine whether or not the defendant is in military service.
(There is a public database maintained by the Department of Defense Manpower Data Center (DMDC) where military status can often be verified). A Tampa military divorce lawyer filing a case against a service member must comply with this affidavit requirement.
Court Actions if the Defendant is in Military Service (and hasn’t appeared): If the affidavit shows the absent defendant is in military service:
- Appointment of Counsel: The court must appoint an attorney to represent the absent service member’s interests. This attorney does not become the service member’s personal lawyer in the full sense, but their role is to investigate, locate the service member, advise them of the lawsuit, and potentially seek an SCRA stay on their behalf.
- Stay of Proceedings: The court must grant a stay of proceedings for a minimum of 90 days if requested by the appointed attorney or upon the court’s own motion, if it determines that the service member’s duties may be materially affecting their ability to defend themselves.
- Bond Requirement: Even if a default judgment is eventually entered (e.g., after stays expire and the service member still fails to appear without justification), the court may require the plaintiff to post a bond to protect the absent service member against any loss or damage if the judgment is later set aside.
Setting Aside Default Judgments: If a default judgment is entered against a service member during their period of military service (or within 60 days after), the SCRA allows the service member to apply to have that judgment reopened and set aside. To do so, they must generally show:
- That their military service prejudiced their ability to defend the case.
- That they have a meritorious defense to the original action (meaning they have a legitimate argument against the claims made).
This protection ensures that a service member deployed overseas does not return home to find their divorce finalized, assets divided, and custody determined without ever having had a chance to present their case. Any Tampa military divorce lawyer representing a service member will be acutely aware of these vital default judgment protections.
Other SCRA Protections Potentially Relevant to Divorce
While stays and default judgments are the most common issues, other SCRA provisions might occasionally arise:
- Stay of Execution of Judgments/Attachments: Section 3934 allows a court to stay (pause) the enforcement of a judgment (like an order to pay a large property settlement amount) if the service member’s ability to comply is materially affected by their service.
- Lease Terminations: Section 3955 allows service members under certain conditions (like receiving PCS orders or deploying for 90+ days) to terminate residential leases early without penalty. While not directly part of the divorce litigation, this can impact housing arrangements during separation.
- Interest Rate Caps: Section 3937 caps interest rates at 6% on certain pre service debts. This might be relevant if significant marital debt exists.
Pitfalls and Strategic Considerations: The SCRA is Not Absolute
While the SCRA provides essential protections, it is not a blank check, and it can be misused or misunderstood. Both service members and non military spouses need to be aware of the nuances.
For the Service Member:
- You Must Request Protection: Most SCRA protections, especially stays, are not automatic. You (or your Tampa military divorce lawyer) must proactively file the required applications with the court. Simply being deployed is not enough; you must formally notify the court and justify the need for delay.
- “Material Effect” is Key: You must clearly articulate how your duties prevent participation. A vague claim of “being busy” is unlikely to suffice for additional stays beyond the initial 90 days.
- Communication is Crucial: The SCRA requires you to inform the court when your availability changes. You cannot unreasonably delay once you are able to participate (e.g., return from deployment).
- SCRA Does Not Excuse Misconduct: The SCRA protects against disadvantages due to service. It does not protect against failure to pay child support when you are able, or engaging in bad faith litigation tactics.
- Hire Counsel Early: Trying to navigate SCRA requests from a remote location without a lawyer is difficult and prone to error. Engaging a Tampa military divorce lawyer early allows them to manage the process correctly on your behalf.
For the Non Military Spouse:
- SCRA is Not Forever: While frustrating, the initial stay is mandatory if properly requested. However, subsequent stays are discretionary. Your Tampa military divorce lawyer can fight against unreasonable or unnecessary delays.
- Challenge the “Material Effect”: If you believe the service member can participate (e.g., they are stationed stateside with reliable communication, have already hired a lawyer, or seem to be using the SCRA solely to stall), your lawyer can present evidence to the judge arguing against further stays. We can request limited discovery or hearings specifically on the SCRA issue.
- Seek Temporary Relief: A stay generally pauses the entire case. However, in urgent situations involving the children’s welfare or dire financial need, your Tampa military divorce lawyer can sometimes argue for limited, temporary orders (like temporary child support or a temporary protective order) even while a stay is technically in place, though this is challenging.
- Verify Military Status: Ensure the SCRA affidavit filed by your lawyer is accurate. Do not assume your spouse is covered if they are, for example, a civilian contractor or no longer on active duty.
- Be Prepared for Delays: Accept that some delay is likely unavoidable if your spouse is genuinely unavailable due to deployment or critical duties. Use the time strategically to gather documents, prepare your case, and work closely with your Tampa military divorce lawyer.
The SCRA aims for fairness, not obstruction. It seeks to balance the demands of military service with the rights of all parties to access the justice system.
SCRA and Jurisdiction: A Common Confusion
It is vital to reiterate that the SCRA generally does not impact the court’s underlying jurisdiction. If a Florida court properly has subject matter jurisdiction (residency) and personal jurisdiction over the service member (through domicile, consent, or proper service), the SCRA does not make that jurisdiction disappear. It only affects the timing of the proceedings. A service member cannot usually use the SCRA to argue that Florida is the wrong state for the divorce if jurisdiction was properly established according to Florida and federal law (like USFSPA for retirement). Jurisdictional battles are separate legal arguments handled by your Tampa military divorce lawyer.
Conclusion: Navigating the SCRA with a Knowledgeable Guide
The Servicemembers Civil Relief Act is a critical piece of federal legislation offering vital protections to those serving our country. In a Florida divorce, it ensures that active duty personnel are not unfairly disadvantaged simply because their military duties prevent them from immediately responding to or participating in court proceedings. The provisions allowing for stays of proceedings and protecting against default judgments are essential safeguards.
However, the SCRA is also complex and subject to specific requirements and limitations. For service members, invoking its protections requires timely, proper application and clear justification. For non military spouses, responding to SCRA requests requires understanding the law’s boundaries and knowing when and how to challenge unreasonable delays.
Whether you are the one wearing the uniform or the spouse at home, attempting to navigate SCRA issues in your divorce without experienced legal counsel is risky. Misinterpreting the law, missing deadlines, or failing to present the correct evidence can lead to significant setbacks. A Tampa military divorce lawyer understands the nuances of the SCRA, how it interacts with Florida family law procedures, and how to advocate effectively for your rights, ensuring the law serves its intended purpose – fairness and justice for all parties involved, even amidst the unique demands of military life. Protect your rights by consulting a qualified Tampa military divorce lawyer today. Choose your Tampa military divorce lawyer carefully. The right Tampa military divorce lawyer makes a difference.
Frequently Asked Questions (FAQ)
What is the SCRA? The Servicemembers Civil Relief Act (SCRA) is a federal law protecting active duty military members from certain legal disadvantages due to their service. In divorce, it mainly allows them to request delays (stays) and protects them from default judgments if they cannot appear.
Can the SCRA stop my divorce completely? No. The SCRA allows for temporary delays (stays) if military service materially affects the member’s ability to participate. It does not grant immunity from divorce or dismiss the case. Eventually, the case will proceed.
How long can my divorce be delayed under the SCRA? If properly requested, an initial stay of at least 90 days is mandatory. Further stays are discretionary and depend on whether the service member can continue to show their duties prevent participation. It is not indefinite, and a Tampa military divorce lawyer can challenge unreasonable requests.
Do I need a lawyer to request an SCRA stay? While a service member can technically request a stay themselves (by writing to the court and providing their CO’s letter), it is highly advisable to have a Tampa military divorce lawyerhandle it. They ensure the request meets all legal requirements and can advocate for necessary extensions.
What happens if a default judgment was entered against me while I was deployed? The SCRA allows you to petition the court to reopen and set aside a default judgment entered during your service (or shortly after) if you can show your service prejudiced your ability to defend the case and you have a valid defense. You must act promptly upon returning.
The McKinney Law Group: Tampa Attorneys Handling Complex Military Divorce Cases
Military divorces often involve multiple jurisdictions and service-related benefits. We help Tampa clients simplify the process and protect their rights every step of the way.
Call 813-428-3400 or email [email protected] to speak with an attorney.