SCRA Divorce Laws: What Plaintiff Need to Know

Imagine being ready to move forward with divorce proceedings only to learn your spouse is serving on active duty overseas. Questions arise quickly: Can the case continue? What happens if the servicemember cannot appear in court?

The Servicemembers Civil Relief Act, often called the SCRA, is a federal law that governs how legal proceedings, including divorce cases, must proceed when one party is a member of the military. It was created to protect service members from unfair civil actions when military duties prevent them from participating fully in court matters.

For plaintiffs and attorneys, compliance with SCRA divorce rules is not optional. Overlooking these protections can lead to serious consequences such as delays, dismissed cases, or default judgments being overturned.

As you read on, you will learn how the Civil Relief Act shapes divorce cases involving military service members and what every plaintiff should know before filing.

What Is the Servicemembers Civil Relief Act (SCRA)?

The Servicemembers Civil Relief Act is a federal law passed in 2003 to update and replace the earlier Soldiers’ and Sailors’ Civil Relief Act of 1940. It was designed to reflect modern military service realities and strengthen legal protections for those serving the nation.

Its purpose is to protect active duty service members, reservists, and eligible National Guard members from unfair legal outcomes when their duties prevent them from attending court. For instance, if a service member is deployed overseas and cannot respond to divorce papers or appear at a custody hearing, the court must pause or adjust the case to prevent a default judgment.

The Civil Relief Act applies to a broad range of civil matters, including divorce proceedings, property division, child custody, and debt-related lawsuits. While it does not alter family law or divorce grounds, it ensures fair timing, notice, and due process so that no military member is disadvantaged due to their service.

With more than 150,000 active duty personnel deployed at any given time, according to the Department of Defense, these protections remain critical to preserving fairness in legal proceedings when military service interferes with participation.

Why SCRA Matters in Divorce Cases?

Divorce becomes far more complicated when one spouse is serving in the military. Consider how difficult it can be to receive court notices or respond to legal documents while deployed or constantly reassigned to new bases. The Servicemembers Civil Relief Act was created to prevent such situations from leading to unfair outcomes.

This federal law protects active duty service members from losing their legal rights when they are unable to appear in court because of their military duties. Before a court can move forward with a divorce hearing or issue a default judgment, it must verify the servicemember’s active duty status through official records such as the Defense Manpower Data Center and confirm that proper notice was received.

For plaintiffs, following these procedures ensures that their case remains valid and compliant with federal law. For service members, the same protections provide peace of mind that their absence due to deployment or training will not result in an unjust decision.

The Servicemembers Civil Relief Act ultimately keeps divorce proceedings balanced. It allows both sides to pursue fair resolutions while honoring the unique challenges of military service.

Stay of Proceedings Under the SCRA

Courts cannot expect a service member stationed across the world to participate in divorce proceedings as easily as someone living stateside. Recognizing this, the Servicemembers Civil Relief Act allows courts to grant what is known as a stay of proceedings. This pause ensures that military duties do not compromise a service member’s right to fair participation in legal matters.

A stay means the court temporarily postpones action when active duty service prevents attendance. Either the service member or their attorney can request this delay, typically for a minimum of 90 days. The request must include:

• A written statement explaining how military service affects the ability to appear in court.
• A letter from the commanding officer confirming that duty prevents attendance and that leave has not been approved.
• In some cases, the servicemember’s social security number to verify military status through the Defense Manpower Data Center.

If the servicemember remains deployed or continues to face conflicting duties, the court may extend the stay for additional time. For instance, when a spouse is deployed overseas and cannot attend divorce hearings, the court must halt the process until the servicemember can participate or communicate with legal counsel.

This protection does not cancel or dismiss the case. It simply ensures that proceedings move forward only when both parties have a fair opportunity to respond and present their side. The stay of proceedings is one of the clearest ways the Civil Relief Act safeguards both fairness and due process in family law disputes involving military members.

Protection from Default Judgments

When one party in a divorce case is serving on active duty, courts must take extra care before issuing any ruling. Under the Servicemembers Civil Relief Act, no court can enter a default judgment against a servicemember until their military status is confirmed. This requirement prevents judgments from being made without giving the service member a fair chance to respond.

Before a judge can proceed, the plaintiff must file a Military Affidavit, also known as an Affidavit of Non-Military Service, verifying whether the defendant is currently on active duty. This document is critical because it formally notifies the court of the servicemember’s status.

If the court confirms that the person is serving, it may appoint an attorney to represent the absent member and ensure their rights are protected during the proceedings.

These safeguards stem directly from SCRA §3931, which was established to prevent wrongful judgments when military duty limits participation in civil lawsuits. For instance, if a deployed service member has not received notice or cannot respond to divorce filings, the court must pause the case until proper verification and representation are in place.

Failing to provide the required affidavit can delay a divorce case for weeks or even months. Plaintiffs and attorneys can avoid such setbacks through proactive verification using reliable services like the Defense Manpower Data Center (DMDC) or trusted verification providers such as SCRACVS, which help confirm military status quickly and accurately.

Service of Process and Notice Requirements

Courts recognize that a servicemember’s schedule, duty location, and communication limits can make standard service impossible. Because of this, the Servicemembers Civil Relief Act sets clear rules to ensure that no legal action begins without verified notice.

When a plaintiff files for divorce, the court expects proof that every reasonable effort has been made to deliver notice. This may include certified or registered mail, assistance through the servicemember’s commanding officer, or, for those stationed overseas, formal service under the Hague Convention. Each step helps confirm that the person being served truly has an opportunity to respond.

Before the case can proceed, the court requires documentation verifying the individual’s military status. This is typically supported by a Military Affidavit and a Defense Manpower Data Center (DMDC) verification report, both of which establish that the servicemember has been properly identified.

Attorneys often attach these documents when filing, as doing so demonstrates compliance with SCRA provisions and prevents the court from questioning whether notice was properly handled. Proper service not only protects the rights of military members but also safeguards plaintiffs from avoidable case delays and procedural errors.

Child Custody and Temporary Orders

Disputes involving children are often the most sensitive part of any divorce, and the challenge deepens when one parent is serving in the military. The Servicemembers Civil Relief Act helps courts handle these situations carefully, ensuring that both the child’s welfare and the servicemember’s rights remain protected.

Although the SCRA limits final judgments while a parent is on active duty, it allows courts to issue temporary custody or child support orders when immediate family needs arise. These temporary decisions provide stability for the child without permanently affecting parental rights.

Once the servicemember can participate, the court reviews or replaces those orders to ensure fairness to both parents.

Judges are guided by one key principle: the child’s best interests. At the same time, they must recognize that a parent’s military service may restrict their physical presence but not their parental involvement. Courts often create practical arrangements such as virtual visitation or flexible schedules for deployed parents until their return.

This approach maintains balance. Families receive the necessary support and structure, while service members retain the opportunity to contribute meaningfully to their child’s life despite the constraints of active duty.

Waiver of SCRA Rights in Divorce

Not every servicemember chooses to invoke the protections provided under the Servicemembers Civil Relief Act. In some divorce cases, particularly those that are uncontested or filed jointly, waiving these rights can help the process move forward more efficiently. Still, courts require that every waiver meet specific legal conditions before it becomes valid.

A servicemember may waive SCRA protections only:

• In writing, and
• Signed during or after the period of active duty service

Any waiver signed before entering military service is invalid. This safeguard ensures that individuals do not surrender their rights without understanding how military duties might affect their participation in legal proceedings.

In uncontested divorces where both spouses agree on all terms and file jointly, a servicemember’s active participation often serves as a voluntary waiver of certain SCRA provisions.

Unsigned, verbal, or incomplete waivers have no legal standing. Attorneys and plaintiffs should always ensure that any waiver of Civil Relief Act protections is clearly written, properly signed, and included in the court record to preserve the integrity and enforceability of the divorce case.

Jurisdiction and Residency Rules in Military Divorce

Divorces involving military families often raise a simple yet critical question: where should the case be filed? With frequent relocations and deployments, determining jurisdiction can become complicated. The Servicemembers Civil Relief Act does not decide where a divorce takes place, but it ensures that proceedings do not move forward unfairly while a servicemember is unable to appear.

Jurisdiction in military divorce cases generally follows state family law and is usually determined by one of the following:

• The state where either spouse resides
• The state where the servicemember is currently stationed

For example, if a servicemember is deployed overseas while their spouse resides in Texas, a Texas court can still claim jurisdiction, provided that the residency requirements outlined under state law are satisfied.

This framework ensures that military families are not disadvantaged by the unique demands of service. The SCRA’s role is to guarantee fairness in timing and participation so that neither party loses their legal rights due to the servicemember’s duty status.

Obtaining a Military Affidavit for Divorce Proceedings

Before a divorce case involving a potential servicemember can move forward, the court must know whether the defendant is on active duty. This step is not a formality; it is a legal requirement under the Servicemembers Civil Relief Act to prevent default judgments against those who cannot appear due to military service.

The verification comes through a Military Affidavit, also known as an Affidavit of Non-Military Service.

Courts require this affidavit before granting a default judgment, as it serves as proof that the proper checks were made. To obtain one, plaintiffs or their attorneys can:

• Conduct a search through the Defense Manpower Data Center (DMDC), the Department of Defense’s official verification system, or
• Use a reliable third-party verification service such as SCRACVS, which provides court-accepted affidavits and supports complete compliance with SCRA requirements.

To ensure quick and accurate results, you’ll need to provide identifying information such as the person’s full name, date of birth, and, preferably, their Social Security number. The verification confirms whether the individual is currently on active duty and includes data covering up to 365 days prior, satisfying court documentation standards.

Obtaining this affidavit early in the process can save weeks of delay. Without it, courts often issue automatic 90-day continuances to allow time for verification.

Ensure Compliance and Protect Due Process

Divorce cases involving active duty military members demand precision and fairness at every step. The Servicemembers Civil Relief Act exists to make sure that those serving the country are not placed at a legal disadvantage when duty prevents them from appearing in court. It protects due process and promotes lawful, balanced outcomes for both parties.

For plaintiffs, lawyers, and anyone handling civil cases involving servicemembers, compliance with SCRA rules is essential. It reflects both legal diligence and respect for federal law. Proper procedures, such as filing a verified Military Affidavit and confirming active duty status, safeguard the case against delays, reversals, or penalties.

The simplest way to remain compliant is through official verification. Reliable Military Affidavits obtained from SCRACVS provide court-approved proof of a person’s military status and help cases move forward efficiently.

Need to verify military status before filing for divorce or a default judgment? Get it through SCRACVS. It is compliant, secure, and designed for fast results.

FAQs

Does SCRA protect against divorce?

The Servicemembers Civil Relief Act does not prevent divorce, but it ensures fairness when one spouse is on active duty. This federal law protects service members from default judgments or unfair rulings if they cannot attend court due to military service. Courts may postpone divorce proceedings or issue temporary orders until the servicemember can participate. These SCRA protections apply to civil lawsuits, family law cases, and divorce proceedings involving issues such as property division, custody, and child support.

What am I entitled to in a divorce from a military member?

A spouse divorcing a military member may be entitled to a portion of military retirement pay, spousal support, or child custody and support. Entitlements depend on state courts and the overlap between marriage and military service. The Civil Relief Act ensures that both parties receive fair treatment, especially when the servicemember’s duty limits their ability to appear. This balance helps maintain fairness in family law cases without penalizing service members for active duty obligations.

What is the 20 20 rule for military divorce?

The 20 20 rule applies when a couple has been married for at least 20 years, and the servicemember has completed 20 years of military service with at least 20 years of overlap between the two. Under this rule, the former spouse may continue to receive military benefits such as healthcare and commissary privileges. These entitlements are separate from SCRA divorce protections, which deal with legal proceedings rather than post-divorce benefits.

Can my ex-wife get my military retirement if she remarries?

If a court has already divided military retirement pay in a divorce decree, a former spouse’s remarriage generally does not affect their share. Military retirement is treated as marital property, not ongoing support. However, remarriage may influence other benefits, such as spousal support or survivor coverage. The Servicemembers Civil Relief Act focuses on ensuring lawful divorce proceedings, protecting active duty service members from unfair judgments or procedural errors.

Can my wife get my military disability if we divorce?

Military disability compensation is not divided in a divorce since it is classified as personal income under federal law. Unlike retirement pay, disability benefits cannot be assigned to a former spouse. However, the amount may still be considered when calculating alimony or child support. The Civil Relief Act ensures that divorce proceedings involving disability income follow due process, especially when a servicemember’s duty affects their ability to appear in court.

Is military retirement split in divorce?

Yes, military retirement pay can be divided as marital property under the Uniformed Services Former Spouses’ Protection Act (USFSPA). The amount depends on state law and how long the marriage overlapped with military service. The Servicemembers Civil Relief Act does not govern asset division but guarantees that military members receive proper notice and a fair opportunity to respond before any judgment. Together, these laws ensure that divorce proceedings involving service members remain lawful and balanced.