Default Judgments When Divorcing Someone in the Military

What Happens If My Spouse Does Not Respond to My Divorce Petition

Divorcing someone in the military involves special rules especially when a military spouse fails to respond to a divorce petition. In any dissolution of marriage proceeding, the party that files the initial petition has the obligation to serve a copy of the divorce petition on the opposing party with instructions to file an answer within 28 days.

Protection from Default Judgment for Members of the Military

However, if you are filing for divorce from someone in the military and your spouse fails to respond, you may not be able to get a default judgment entered against them. Pursuant to the Servicemembers Civil Relief Act (the “Act”), specifically section 3931 (50 U.S.C. §3931), servicemembers are protected from having a default judgment entered against them in any civil action unless certain requirements are met.

Requirements for Protection from Default Judgment

The first requirement is that the Petitioner must file an Affidavit which states whether the Respondent is in the military service and showing necessary facts to support that conclusion. The second requirement is that the Court must appoint an attorney to represent the defendant. This attorney must make efforts to locate the servicemember. If the appointed attorney cannot locate the servicemember, the attorney’s actions cannot be held against the servicemember.

Court Authority to Vacate the Default Judgment

If these rules are not followed and a default judgment is entered against a defendant who is in the military, the Court has the authority to vacate or set aside the judgment. Which means that the petitioner would be back at the beginning without any relief.

Plan Ahead When Divorcing Someone in the Military

Therefore, if you are married to someone who is serving in the military, it is best to locate them and discuss the matter with them before filing a dissolution of marriage. Knowing where the servicemember is located and whether they are willing to submit to the jurisdiction of the Court will help the process go smoother and help eliminate any potential surprises down the road.

When Everything Is On The Line, You Need An Attorney You Can Trust, That Will Advocate & Fight For Your Family! We Can Help!

When Everything Is On The Line, You Need An Attorney You Can Trust, That Will Advocate & Fight For Your Family! We Can Help!