SCRA gives special rights to active military

| Jul 25, 2020 | Divorce |

Minnesota family law courts cannot proceed with divorce cases involving active military servicemembers due to special federal protections. The Servicemembers Civil Relief Act of 2003, or SCRA, protects all active military, which includes full-time members of the nation’s five primary branches as well as reservists and National Guard members during periods of active duty. The SCRA affirms that military divorce and child custody cases only can proceed when servicemembers are not on active duty.

SCRA protects against unlawful proceedings

The SCRA enables active military members to obtain an automatic 90-day stay of civil legal proceedings, including family law proceedings regarding child custody and other matters. Active military members can seek extensions of 90-day stays when their military service makes it difficult to participate in their respective legal cases. The judge, magistrate or hearing officer in charge of a case can deny stay or postponement requests beyond the initial 90-day period. The SCRA only applies to civil proceedings and does not provide protection in criminal cases.

How the SCRA affects child custody cases

When divorce or legal separation is inevitable, the SCRA does not allow family law courts to use military deployment as the only factor in deciding custody. Military deployment can affect the eventual court order, but it cannot be the primary motivator for the legal action. The court also cannot enter permanent orders that alter existing child custody arrangements when the parent with custody is on active duty and unavailable.

If a custody order is altered while deployed, the prior custody agreement is reinstated when the deployed servicemember returns. The altered order only can stay in force if the non-deployed parent can prove that reinstating the prior order would undermine the child’s best interests.

Help is available for military members in Minnesota

Divorce cases must abide by the SCRA regulations while you are on active duty. If a court renders a legal decision in violation of the federal law, an experienced Minnesota military divorce attorney may help to protect your legal rights.