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I’m a military parent. Is my parenting case covered by the SCRA?

On Behalf of | Aug 13, 2021 | Military Divorce |

Yes, if you are on or about to be on active duty. The Servicemembers Civil Relief Act (SCRA) protects military service members from having to focus on civil legal matters while they are trying to do their military duty.

The SCRA is a law meant to protect service members and their families from civil legal cases while the service member is on active duty. Since family law cases are civil, they are affected by the SCRA. Basically, if you can show that being involved in the civil case would have a material effect on your military service, the civil case will have to be postponed until you return.

The SCRA protects:

  • Full-time, active duty personnel from all branches of the United States armed forces, along with commissioned officers of the Public Health Service or the National Oceanic and Atmospheric Administration who are on active service
  • Reserve personnel from any military service branch who are on active duty (this includes your annual two-week tour of duty but not weekend drills or inactive duty)
  • Members of the Army National Guard or Air National Guard when they are called to active duty by the Secretary of Defense, when they are responding to a national emergency declared by the President, or for more than 30 days in a row
  • The service member’s dependents, including their spouse, children and anyone else they have provided at least half of the support for during the 180 days prior to applying for SCRA protection

You are protected by the SCRA even if you volunteered for active duty. You do not have to be in a combat zone to apply for SCRA protection.

Can a landlord or creditor demand I waive my SCRA protections?

Not legally, although they might try. SCRA protections cannot be waived in most circumstances. If you wanted to waive your rights, you would need to do so in writing, and it would only be effective under certain circumstances. If someone has asked you to waive your SCRA protections, talk to a lawyer who handles military issues.

Can someone assert my SCRA rights in my absence?

Yes, if you have given that person power of attorney over your affairs. You can also ask your lawyer to assert your SCRA rights if you are deployed and cannot do so yourself.

Does the SCRA apply to child support matters?

Yes, but you should also know that failing to support your family is considered a crime under military law. In Arizona, the amount of child support you owe is decided using child support guidelines. The calculation of child support is usually, therefore, quite straightforward. You may want to weigh carefully whether to contest such a calculation.

Do I have to assert my SCRA rights if the court hearings are virtual?

If you are in a situation where you can attend virtual court hearings, you may not need to delay your family law case until you return from active duty. However, you should consider carefully whether your active duty service will distract you or make it harder for you to participate in the process.

If your service will not materially affect your ability to respond to the civil case, you should not assert your SCRA rights – but you need to be sure.

If you are interested in postponing a divorce or family law case while you are on active military duty, talk to a family law attorney who knows how to handle military issues and can properly assert your SCRA protections.