18 Aug Service Members Receive Certain Protections in Family Law Matters
There are laws that protect an active duty soldier from being held in “default” for failing to respond to a divorce action. Under the Servicemembers Civil Relief Act (SCRA), divorce proceedings may be postponed for the entire time an active duty servicemember is on duty and for up to 90 days thereafter. An active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Texas court to have jurisdiction. In the case a divorce is uncontested, the active duty spouse may not have to be served if he or she signs and files a waiver affidavit acknowledging the divorce proceedings.
One issue that comes up often in military cases is which state has jurisdiction over decisions involving the children. The Uniform Child Custody Jurisdiction and Enforcement Act, (UCCJEA), sets rules about jurisdiction for all children, including those of servicemembers. The UCCJEA rules are complicated, as they require figuring out where a child has lived for the six months before the divorce was filed, which can be a difficult task. These rules can be tough on servicemembers, especially those who are deployed overseas. If they stay away longer than six months, the other parent can establish residency in a state where the servicemember has no ties, and the rest of the case will have to be handled there. A good idea when you are deployed overseas is to ask the other parent to sign an agreement about where the child will live and where the permanent home is. Then you won’t end up in a battle about where to argue about custody.