Servicemember’s Civil Relief Act (SCRA) Based On Appearance and Nonapperance of the Servicemember in Colorado Springs Divorce

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

If a person is in the military, he or she may request a stay of court or administrative proceedings as related to military service obligations. Some court and administrative proceedings can be stayed temporarily during military service. It might be difficult for a servicemember to participate in such proceedings while he or she are involved in the national defense. Some deployed servicemembers may not see their families for months at a time and may have limited communication access. While most servicemembers on deployment do have reliable access to communications, there are times where they may not if they are on patrol away from their base, in more remote locations, or are conducting special operations, for example.

A stay of proceedings delays proceedings until the servicemember can meaningfully participate. It is important to inform a military spouse of the possibility of a stay of proceedings for a deployed servicemember. While the armed forces are supportive of participation in civilian court proceedings, there are times where a servicemember can not take time away from the mission to appear at or actively participate in the proceedings. The period of the stay may be for the period of active military service or any part of that period. As a practical matter, the courts usually grant a stay of proceedings for such time as is necessary. Because judges are concerned about granting lengthy stays, they usually require good faith and due diligence in efforts to obtain military leave in order to appear in court.

Case Profile:(unpublished) Colorado case on stay of proceedings – Appellee v. Lynch, 2011 Colo. App. LEXIS 2374 (Colo. App. 2011). Husband, a member of the U.S. Army special forces, was outside of the country when Wife filed for dissolution. His out-of-state attorney executed a wavier of service. Husband did not appear at the temporary orders hearing set in the case and Wife’s counsel represented that he was proceeding pro se. Id at *2. The trial court granted Wife temporary maintenance. Id at *8.  Husband then obtained other counsel and the parties stipulated to continue the permanent orders hearing. Husband then requested a 90-day stay stating that his military duties would preclude him from returning for the permanent orders hearing. However he apparently did not provide detail to the court about why his military duty would preclude his appearance. The Court denied the continuance and ordered Husband to complete discovery that had been propounded to him.

Husband appeared at the permanent orders hearing. Id. at *3. After Wife received evidence from the parties’ banks, the parties requested that the case be reponed. Id. Wife was awarded approximately half of the marital assets, spousal maintenance and attorney’s fees. The Court found that although Husband had requested a stay prior to the permanent orders hearing, he had not satisfied the statutory threshold conditions required for the request.

Husband argued on appeal that the trial court failed to stay the proceedings under the SCRA when it had an obligation to do so. Id at *8. The Court of Appeals determined that the SCRA made a default proceeding voidable rather than void and required a showing of prejudice and a meritorious defense to void it. Other than alleging that the trial court did not protect his civil rights, Husband made no specific allegations as to prejudice or a meritorious defense. Id at *9. Therefore, the failure to stay was upheld on appeal.

In some contrast, in Oversole v. Manci, the trial court was found to have abused its discretion in ruling that the plaintiff failed to prosecute the case when failing to timely serve a military member and dismissing the case with prejudice because. The Court of Appeals found that the defendant’s military service could have provided a valid reason for lack of timely service. Oversole v. Manci, 216 P.3d 621 (Colo. App. 2009).

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A 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 on 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.