Is it possible to divorce a military member who has been served with “legal process” but has not filed an answer or otherwise entered an appearance in the case? Yes, but extra steps are required because of protections afforded the military member against a default judgment under the Servicemembers Civil Relief Act (SCRA).1
When a military member has been served, but not answered or appeared, the SCRA requires that the Court appoint an Attorney Ad Litem to represent the member’s interests before a default judgement may be granted. Failure to do so may be grounds for having the divorce decree vacated later. Typically, the Attorney Ad Litem will request a “stay” of the divorce proceedings for 90 days (prescribed within the SCRA) and try to contact the member to see if his/her current duty precludes appearance and/or whether the member has a “meritorious defense.” Nevertheless, at some point, the case can and will move forward after the Attorney Ad Litem either gets the member to answer and join the case or the Attorney Ad Litem concludes they’ve performed their due diligence.
Who pays for the Attorney Ad Litem? Regrettably, the answer is the spouse seeking the divorce (commonly known as the Petitioner). There are additional factors to consider, so ensure you speak with a qualified military divorce attorney if you believe you will (or already are) facing this situation.
Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC. The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world. The firm specializes in Federal Civil Service and Military Divorce matters.
Note1 – See 50 U.S.C. Sec. 3931 (recodified from 50 U.S.C. Appendix Sec. 521) which describes the SCRA protection for a military member, who has not answered or appeared, against a default judgment.