Servicemembers’ Civil Relief Act–blog series #3

Servicemembers’ Civil Relief Act–blog series #3

The first two blogs in this series addressed a request for a stay in a divorce, and a potential default judgment. This blog #3 will discuss how the civilian spouse can oppose a request for stay.

A stay (or pause) in the case may cause serious problems for the spouse. Lack of child or spousal support, failure to pay debts, and disputes over child-related decisions could be unresolved for quite some time. Therefore, the spouse should not simply accept a request for stay. The SCRA allows a spouse to challenge that request.

Recall that the servicemember must allege that necessary military duties prevent him/her from participating in the case. It is not enough to state only that he/she is in the military, or provide some vague statement of obligations. A challenge to a stay should consider where the member is stationed, available leave, the member’s duties, and alternate means of participation (video, phone, etc.). Formal written discovery requests to specify support for the stay may be possible, and less burdensome for the member. From the servicemember’s perspective, he/she must avoid vague statements when requesting a stay, and instead provide at least a reasonable amount of detail for the judge to support her decision.

Some cases, at least initially, may not require the member’s personal participation. Many temporary hearings in Wisconsin are handled without formal testimony. Provided that the servicemember has an appointed lawyer, and has had some contact with the lawyer, a temporary hearing could proceed on limited issues. Relatively simple issues such as child support, tax filing, etc. are conducive to this procedure, since the court can simply reference the parents’ respective incomes without formal testimony.

A divorce need not be completely stalled because of a stay. The civilian spouse should inquire if any issues are not disputed. Those issues can then be resolved, at least temporarily. For example, a servicemember stationed in a combat zone may not be able to exercise custody or child placement for a period of time. That issue could be agreed to provide at least temporary structure to the civilian spouse and children, while disputed issues are on hold. In some cases, the divorce itself could be granted prior to resolution of related financial issues.

The spouse can also obtain a court order or authorization from the member to obtain financial and other records during the stay. A servicemember likely can sign a document authorizing disclosure of information. While the case waits for the member to personally participate, the civilian spouse can obtain most necessary information and be prepare to move forward once the stay is lifted.

The message for the military spouse: make sure your stay request states specifically why you cannot meaningfully participate in the case. For the civilian spouse: don’t give up immediately when faced with a stay request. Evaluate each situation on its merits. The SCRA does provide effective ways to avoid unnecessary delay.

Attorney David Kowalski routinely handles military divorces for both servicemembers and their spouses. Contact him at 608-405-6663 with any questions.

Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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