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Active duty military members protected from default divorce

On Behalf of | Oct 4, 2017 | blog |

Florida military service members have to disrupt their lives as a natural side effect of doing their duty whenever they are on active duty. This fact can put them at a severe disadvantage in several legal areas.

Difficulties can arise in terms of entering into contracts and fulfilling contracts. They can be unable to readily appear to defend themselves if someone sues them for any reason, including for divorce.

Additional pleading required for military member divorce

A federal law known as the Servicemember’s Civil Relief Act provides protections. The SCRA requires an extra addition to every petition for a divorce where one of the parties is in the military on active duty. The petitioner must include a pleading regarding the military status of the military member.

The reason for this requirement is that if the military member fails to file an answer to the petition for divorce and a default judgment may otherwise result, the court may prevent what would be an invalid default judgment. The court may not enter a default judgment against the non-appearing defendant who is on active duty. The service member is, essentially, given a temporary reprieve from having to deal with the court matter while on active duty so his or her attention is where it should be.

Affidavit confirming military status required before judgment

To ensure this legal reprieve occurs, if the military member does not answer the complaint, the family court must require an affidavit from the petitioner. The petitioner must certify as to whether the other party is on active duty. There are official verification sources that the affiant can utilize and obtain documentation from to include with his or her affidavit.

A petitioner for divorce will want to make sure he or she follows the dictate of the SCRA because failing to do so can result in having to start the process all over again. For those parties who are trying to control the costs of divorce, properly pleading the military status and then providing an accurate affidavit is a necessary start.