Special Issues in Military Divorce: Rules of Practice and Procedure for Family Court

B. RULES OF PRACTICE AND PROCEDURE FOR FAMILY COURT

1.    Servicemembers Civil Service Relief Act (SCSRA)

The SCSRA is a federal law that provides a number of protections for servicemembers (SMs) to compensate for unique hardships created by their service.  One of those protections is that SMs are able to receive a “stay of proceedings” in civil court cases.  The application of the stay depends on whether the SM made an appearance in the matter and whether they had notice of it.  For a SM that did not make an appearance and did not have notice of the proceeding, the court must grant a stay of at least 90 days.  If the SM made an appearance or had notice of the proceeding the court may grant a stay upon its own motion.  If the SM made an appearance or had notice and makes his/her own motion for a stay the court must grant a stay of at least 90 days if the SM provided the information required by the statute and the court determined the stay was necessary.  The statute requires that the SM: (1) acknowledge that his/her military duties materially affect his/her ability to appear in court; (2) provide a date when he/she would be able to appear; and (3) offer a statement from the SM’s commanding officer that his/her military duties prevent the court appearance and that leave is not authorized for the appearance.  There is no affidavit requirement and the statement from the commanding officer can be as simple as an e-mail.  Importantly, requesting a stay does not waive any defenses or objections and it does not constitute an appearance.  The stay can be extended by the court in its discretion after the original stay elapses if the court finds the SM’s ability to defend him/herself is “materially affected” by his/her service.  

 

2.    Jurisdiction

In Virginia for a court to have subject matter jurisdiction over a divorce one party must be an actual bona fide resident and domiciliary of the Commonwealth at the time of filing and for at least six months before filing.  Certain exceptions apply to this requirement for members of the armed forces.  A SM stationed or living in Virginia for six months before filing is considered a bona fide resident and domiciliary for the purposes of the statute.  Additionally, an SM serving overseas will be meet the resident/domicile requirement if they resided in Virginia for the six months immediately preceding their assignment overseas.

 

3.    Service

    Service of SMs can be difficult if they are off-post or serving overseas.  If the SM is in Virginia and living off-post in a private residence, they can be served just like a civilian.  Similarly, if the SM is living off-post out of state they can be served just like an out of state civilian.

    If the SM is on-post, meaning they live on base, special precautions must be taken.  Generally, military regulations state that a SM cannot evade service, however the same regulations will not force military personnel to complete service.  For practical purposes this means that the military will help facilitate service by notifying the SM and asking whether they will agree to accept service.  SMs are usually given an opportunity to receive legal advice from a JAG Officer prior to deciding whether to accept service.  A Commanding Officer may contact the process server for the documents and provide them to the SM, or he may arrange a meeting for the process server and SM.  Note, SMs on-post can accept service when it is mailed to them, just like they would be able to if they lived off-post.  Often this is the easiest solution if the SM is also seeking a divorce.

    Overseas SMs present an additional obstacle.  Not only must on-post guidelines be followed, but usually provisions from two multilateral treaties on service of process, the Hague Service Convention and the Inter-American Convention on Letters Rogatory will apply as well.  More information can be found on the U.S. Department of State website for judicial assistance information.