Military Service Members Rights Regarding Divorce Proceedings and Other Civil Lawsuits

hands and the US flag indicating military divorce

Under the federal Service Members Civil Relief Act of 2003 (SCRA), SCRA added additional protection to previous Federal laws regarding civil laws suits against active duty military members. Since the civil war, federal protections have been in place regarding civil lawsuits against military members.

Changes to Federal Laws Regarding Civil Lawsuits Against Military Members

However, under SCRA, the laws have been amended to provide that civil lawsuits regarding bankruptcy, divorce, foreclosure and breach of contract against active duty military members may be stayed when the service member’s military duties prevent him or her from receiving full legal protections. This includes protection from divorce and paternity default judgments, and civil judgments in other matters, foreclosure, breach of contracts and termination of leases and evictions. Also, under SCRA, military service members are protected against having to pay income taxes in two different states. There is also now a six percent loan cap on mortgages, automobile loans, credit cards and other consumer debts for military service members.

How to Exercise Your Rights

If your spouse filed a civil divorce matter in New York, and you are an active duty military member, you have the right to request a stay or suspension of divorce proceedings for 90 days in order to give you time to respond to court documents, motions, notice to produce documents and preparation for a divorce trial. If the military member is seeking a stay or suspension, a statement must be made by the military service person that active military duties prevent the person from participating or appearing in any court appearances pertaining to their divorce or family law matter or other civil matter and a projected date when the person may be able to appear or respond. The commander of the military service member may also provide a statement stating that the person’s leave is unauthorized.

However, keep in mind that SCRA does not protect a military member from failure to pay child support. It is important that you keep up your court ordered child support payments whether or not you are facing active military duty. If you are unable to do so, then you need to let the New York Family Law Court formally know of the circumstances as to why you are unable to meet your obligations and ask that payments be reduced or other arrangements by seeking the assistance of a New York family law attorney to file a written motion on your behalf.