I hear a lot of questions about how the Service Members Civil Relief Act (SCRA) can impact divorce proceedings or obligations relating to post-divorce arrangements, such as child custody. Before deciding to utilize the SCRA in your upcoming divorce proceeding, it is wise to consider how it might impact the outcome of your divorce case. Usually, it is best to consult with an attorney about whether the SCRA is the best option for you. In order to learn more about the SCRA and how it operates in divorce proceedings, consider the information below:
An Overview of the Service Members Civil Relief Act (SCRA)
The SCRA allows the potential for a “stay of proceedings” if it can be proved that while you are serving in the military, your ability to defend or prosecute a lawsuit is materially affected by your active duty military obligations. That is to say, a judge may delay all or part of a lawsuit in order to ensure that a military service member on active duty receives a fair hearing, regardless of their current duty status. What is important to understand about the SCRA is that it is not an absolute guarantee that the case will be postponed. For example, the Court will decide which aspects of the case will be delayed and which aspects of the case will still be heard. This is an important issue to be aware of because the Court may decide to delay part of the lawsuit and not another part depending on each particular case’s circumstances. For instance, if you are getting divorced, the Court may delay deciding about division of property and debts, but they may still decide child support payments. Child support is generally ruled on first to ensure that the children impacted by the divorce have financial means to maintain their current quality of life while the individual is actively serving in the military.
Another possible benefit of the SCRA is that it can cover similar areas in your family law matter such as obtaining an interest rate reduction for a loan or other obligation and preventing eviction from a landlord. The SCRA can delay foreclosures on a mortgage as well. Even though there are benefits to service members with the SCRA, it is important for Plaintiffs filing divorce from a member of the armed forces to be aware of the proper procedures to follow in order to avoid delays.
How Courts in Washington View the Service Members Civil Relief Act (SCRA) in Divorce Cases
An important trend to be aware of in Washington courts is that the SCRA has been utilized as an intended argument to postpone proceedings regardless of whether using the SCRA is absolutely necessary in every case. Where this becomes problematic for judges in Washington courts is that it goes against the Court’s ultimate objective, which is to resolve the case swiftly, fairly and with as minimal trauma as possible for all family members concerned. For this reason, if a judge in a Washington Court feels that a service member’s military service has no material effect on their ability to defend against the litigation, they will not permit postponing any part of the litigation. In fact, many Washington courts have begun to knock out the SCRA exception entirely if it is being used to postpone civil litigation unreasonably to promote efficient courtroom procedures.
Is it Wise to Delay the Lawsuit?
Even though it may be tempting to delay your lawsuit, it is wise to weigh whether it is worthwhile to do so. For example, waiting to avoid a foreclosure or an eviction may create problems that will be waiting for you when you return. Make sure the reasons you are choosing to use the SCRA are valid and that they will actually help you have a better outcome to your case. Consulting with an attorney is beneficial to see if the benefits of delaying the lawsuit outweighs the detriments to doing so. Typically, it is best to continue with the lawsuit as planned unless it is absolutely necessary to delay it due to active military service.
What Do I Do If My Spouse Is Using the SCRA to Purposefully Delay Divorce Proceedings?
There have been cases where spouses try to use the SCRA to delay or cause issues in divorce proceedings. If you suspect that your spouse is attempting to do this, there are ways to report this to the Court in order to expedite your trial. These allegations will be difficult to prove; however, if you do suspect it is delaying essential elements of your divorce case, then it is best to speak with an attorney to see how it is best to proceed. Courts typically favor doing what is in the best interest of helping the family get through divorce proceedings. Bear this in mind when making your decision about how to get through your divorce proceedings as quickly and hassle-free as possible.
When to Consult an Attorney About the Benefits & Detriments of Using the Service Members Civil Relief Act (SCRA)
Any time the SCRA is involved in a case, it is important to consult with an attorney. The reason for this is that the SCRA has very particular regulations that have consequences if they are not followed. In addition, if a portion of the lawsuit is not permitted to be delayed, a service member could be at risk of having major important decisions being made without them being aware of the fiscal consequences. The family law and divorce team at Envision has many years of experience dealing with SCRA and other issues that military families face, from divorce, to custody and child support.