By Teresa A. Drexler
Attorney At Law
The Gasper Law Group
Military deployment or other active duty requirements with the military brings many different challenges. Not only is there the anxiety of leaving friends and family behind but inevitably there are questions and concerns with how your personal affairs will be dealt with in your absence. Many legal issues could arise before or during your deployment. Take John and Katie for example. John and Katie have been married for 5 years and have a child, John Jr. Katie received her active duty orders last month and is now overseas. John now decides he wants a divorce and proceeds to file divorce papers and requests custody of John Jr. What does Katie do?
Whether you are on Federal active duty in the Army, Navy, Air Force, Marine Corps, Coast Guard, or other federal agency, the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA) helps protects you from certain civil judgments and liabilities like the example above during your period of active duty. The Act also provides limited protection for dependents of those serving in the military.
The SSCRA takes effect the moment you receive active duty orders. It protects you from high interest rates, default judgments, and other legal rights while on active duty – like a spouse filing for divorce and obtaining custody of a child while you are unaware of any proceedings taking place. Among other things, the SSCRA requires creditors to cap interest rates, tolls time limitations on when you can bring legal action against another, and protects you from eviction and repossession of personal property. The Act can also protect your family and dependents from being evicted from your residence during your active duty period. You should be prepared to show your orders to potential creditors, landlords or other persons who may need proof of your orders before changing any interest rates, payment plans or cancelling a lease.
Now back to John and Katie. Fortunately for Katie, the SSCRA, along with a good attorney, could save the day. John cannot circumvent the legal process simply because Katie is on military leave and unable to respond to any request for divorce or attend related court proceedings. In any case like this, John must first serve Katie with notice of the divorce and request for custody. John could have Katie served while on active duty but this is often difficult to accomplish. Until John serves Katie with the divorce papers, John cannot do anything in this case.
The other scenario is that John files for divorce prior to Katie’s active duty period. In this case Katie would have notice of the divorce proceedings and John could move forward with getting a divorce. But whether Katie is served before her active duty begins or while on active duty, under the SSCRA Katie can request a stay of the proceedings. When a stay of the proceedings is requested and granted, this means nothing happens on the case until both parties are present and available to focus on the case. This means John cannot obtain a divorce, establish parental rights or divide any marital property until Katie is able to be present and adequately represent her interests.
There are strict requirements, however, for obtaining a stay by the court. You must prove that you cannot be present to defend your case and that active military duty is the cause of your absence. You must show that you will suffer actual harm if a stay is not granted by the court. You also need to show that you have made every effort possible to be available but were unsuccessful in those efforts. There are also time requirements for obtaining a stay of proceedings. An experienced attorney can fight for your rights and interests and help preserve the things you have worked hard to obtain.
The Gasper Law Group is a family law firm in Colorado Springs that is home to experienced attorneys. Our attorneys will guide you through this confusing process and ensure you preserve your rights. Our attorney’s represent those in the United States Military with their legal matters. We defend not only those on active duty but retirees, dependents and spouses. The Gasper Law Group prides itself on helping those who are facing divorce in the military. We appreciate your service to our country and will work with our military clients with low retainers, no interest payments, and military discounts.
The Gasper Law Group additionally helps our soldiers who are facing possible criminal charges with allegations of Domestic Violence that often accompanies a military divorce.
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