Tcl - the Servicemembers Civil Relief Act and Domestic Relations Cases - January 2006 - Family Law Newsletter

• Publication year: 2006
• Pages: 31
• Citation: Vol. 35 No. 1 Pg. 31

35 Colo.Law. 31 Colorado Lawyer 2006.

2006, January, Pg. 31. TCL - The Servicemembers Civil Relief Act and Domestic Relations Cases - January 2006 - Family Law Newsletter

The Colorado Lawyer
January 2006
Vol. 35, No. 1 [Page 31]

Articles
Family Law Newsletter

The Servicemembers Civil Relief Act and Domestic Relations Cases

by Devin R. Odell

This column is sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles are intended to focus on practice tips and discussions of current issues within the realm of family law. New column authors are welcomed

Column Editors:

Gretchen Aultman, Denver, of Burns, Wall, Smith &amp Mueller, P.C. - (303) 830-7000, gaultman@bwsm.com; Marie Avery Moses, Greenwood Village, of Cook, Cooper & Moses LLC - (303) 623-1130, marmoses@msn.com.

About The Author:

This month's article was written by Devin R. Odell, Fort Collins, an associate with Frey, Korb, Haggerty & Michaels, P.C., where he practices family law and general civil litigation - (970) 493-8622, dodell@fkhmlaw.com.

This article explains the procedure for obtaining stays under the recent amendments to the federal Servicemembers Civil Relief Act, which protects the rights of servicemembers during active duty. It also discusses the application of the law to domestic relations cases, particularly with respect to temporary orders.

As a result of ongoing U.S. military commitments in Iraq, Afghanistan, and elsewhere, it is likely that many family law practitioners will handle at least one case involving the Servicemembers Civil Relief Act ("SCRA" or "Act").(fn1) Congress enacted the SCRA to allow individuals serving in the military to devote their energy entirely to the country's defense needs by providing for "temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service."(fn2)

Family law practitioners may be familiar with the Act because of its requirement that every petition for dissolution of marriage or legal separation include an allegation regarding military service.(fn3) The SCRA is applicable to virtually all civil cases (criminal cases are specifically excluded), including domestic relations cases. In certain circumstances, the Act requires that a stay be imposed on all proceedings in an action.(fn4)

This article first discusses the recently amended procedure for invoking the SCRA. It then examines the Act's application to specific issues in domestic relations litigation, focusing on how courts and practitioners might resolve the tension between the Act's stay provisions and the need to promptly resolve issues regarding the well-being of children.

Invoking the Protection of the SCRA

The SCRA contains two provisions that authorize the trial court to impose a stay. The first, 50 U.S.C. § 521 ("§ 521"), applies when the "defendant" servicemember "does not make an appearance" in the case.(fn5) Its purpose is to protect a servicemember from default judgments. The second provision, 50 U.S.C. § 522 ("§ 522"), applies when the servicemember, whether in the role of petitioner or respondent, "has received notice of the action or proceeding."(fn6) The Act specifically provides that § 522 shall not apply to situations covered by § 521, except that a servicemember who receives "actual notice" of an action may request a stay under § 522.(fn7)

Preventing Default Judgments

Section 521 requires the court, usually based on the petitioner's verified allegation, to determine whether the respondent is in military service. If the court cannot determine the respondent's military status, judgment may be entered against the respondent.(fn8) In such cases, however, the court may require the petitioner to file a bond to indemnify the respondent against any loss or damage and enter other orders designed to protect the respondent's rights.(fn9)

If the court determines that the respondent is in military service, the court must appoint an attorney to represent the respondent before entering judgment in his or her absence.(fn10) The court must grant a stay of proceedings, on its own motion or that of court-appointed counsel, for at least ninety days, if the judge decides either that: (1) there may be a defense to the action that cannot be presented without the respondent's participation; or (2) the appointed attorney, after "due diligence," has not been able "to contact the [respondent] or otherwise determine if a meritorious defense exists."(fn11)

Finally, the court must reopen a default judgment on a servicemember's application if the servicemember's defense in the action was "materially affected" by his or her military service and the servicemember "has a meritorious or legal defense to the action or some part of it."(fn12) An application to reopen a default judgment must be made within ninety days of the end of the servicemember's military service.(fn13)

Stay Procedure for Ongoing Cases

Section 522 sets forth the procedure for requesting a stay of ongoing domestic relations cases. In 2003, Congress modified this provision to limit trial courts' discretion to decline stay requests, mandating that they issue stays of at least ninety days on proper application.(fn14)

Practitioners should be aware that...