Servicemember’s Civil Relief Act Considerations In Requesting a Stay of Proceedings in Colorado Springs Divorce and Child Custody

Are you involved in a Colorado Springs divorce or child custody proceeding involving the Servicemember’s Civil Relief Act? An experienced Colorado Springs divorce and child custody lawyer can guide you through the legal process and assist you in exploring your options. You have one bite at the apple in the court system so make it count.

Just because a stay can be requested does not mean that one should be. The requesting party should consider whether a delay might lead to negative impact on the servicemember, such as support arrears accrual, or citations for contempt of court. Will the delay benefit the client or just delay the process with nothing to be gained by doing so? Resolutions can sometimes be reached through agreement without ever setting foot in court. Delay can lead to increased attorney’s fees.

Under the Servicemembers Civil Relief Act (SCRA), several considerations must be evaluated when determining whether to request a stay of proceedings. These considerations include statutory requirements, procedural compliance, and judicial discretion. Does the client meet statutory requirements for the stay? Is there a material impact on the servicemember’s (SM’s) military duty? Can the commander provide a statement that military duty prevents appearance and that leave is not authorized? If these requirements are satisfied, the court must grant the stay for at least 90 days . 50 USCS § 3932. Note that courts have discretion to grant stays even when the servicemember does not strictly comply with the statutory requirements.  However, courts have denied stays where evidence shows that the servicemember is not genuinely unavailable and is using the SCRA for improper purposes

Courts may also consider the impact of a stay on the non-military party. For example, temporary orders for child custody may still be issued even when a stay is in place, as long as they do not prejudice the servicemember’s rights at final orders. In Colorado, a temporary order "does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding". C.R.S. 14-10-108.

If a default decree is entered against a SM, the SCRA provides protections. The purpose of this is to protect those in the military from having default judgments entered against them without their knowledge or the opportunity to defend themselves. The SCRA allows a SM who has not received notice of a proceeding to move to reopen a default judgment. The default judgment must have been entered when the SM was on active duty or within 60 days afterwards, and the SM must apply to reopen the judgment while on active duty or within 90 days afterwards. In order to prevail in his or a motion to reopen the default judgment, the SM must prove that at the time the judgment was rendered, the SM was prejudiced in his or her ability to defend the case due to military service. In addition, the SM must show that there is a meritorious defense to the claim.

In any action started against a SM before the period of active military service, during it, or within 90 days after the end of service, when a SM’s military duties materially affect his or her ability to comply with a court order or judgment, then the court may sua sponte and shall by request of the servicemember (1) stay the execution of any judgment or order entered and (2) vacate or stay any attachment or garnishment of property, money, or debts. With regards to the language “before” one relevant situation could be where a SM is in a pre-deployment preparation cycle or lockdown which requires extensive and often short notice, pre-deployment preparation activities. SM’s rarely can take time off during these intensive deployment preparation cycles.

Turning Change Into Opportunity in Colorado Springs, Colorado Divorce and Child Custody

A highly knowledgeable and experienced Colorado Springs divorce and child custody lawyer can guide you through Colorado Springs divorce and child custody matters by negotiating, mediating and litigating on your behalf. You can focus on moving to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law has more than 20 years of legal experience and has written “the book” on Colorado divorce and family law – “Colorado Family Law With Forms”, published by LexisNexis, which you can find here. Contact us at 719-344-5523 or complete our online scheduling request for a free 30-minute informational consultation. We also offer paid advice sessions for a more in-depth analysis of your case.