Rights of Active Duty Military Personnel in Military Divorce and Custody Cases

Right to Stay of Civil Court Proceedings

50 U.S. Code App. § 202 provides that a state court may, on its own motion, and shall, upon application by a servicemember which meets these criteria, stay the proceedings for at least 90 days:

a. The applicant is in the military service, or within 90 days after it ended;

b. The applicant has actual notice of the proceeding;

c. The application is in writing, and includes facts stating how military service materially affects ability to appear, and a date when the servicemember may appear; and

d. The application includes a communication from the servicemember's commander that the military duty prevents appearance, and leave is not available.

The initial 90-day stay is mandatory. Thereafter, the servicemember may apply for an additional stay, using the same criteria, and it is at the Court's discretion to grant or deny the extension assuming an attorney has been appointed to represent the servicemember.

Protection from Default Judgments

50 U.S. Code App. § 201, also provides relief against default judgments for servicemembers who meet the statute's criteria. A plaintiff seeking a default judgment against a servicemember must submit an affidavit stating that the defendant is in the military. If a plaintiff fails to submit such an affidavit, the default judgment is voidable by the servicemember if the servicemember later shows that his or her military deployment prejudiced his or her ability to participate.

Upon application, a court must reopen the default judgment and allow the servicemember to defend the case when:

1. The judgment was entered during the military service or within 60 days thereafter,

2. The servicemember's ability to defend the case was materially affected by the military service,

3. The servicemember has a meritorious or legal defense, and

4. The application to reopen is made during the military service, or within 90 days after it ended.