Two aspects of life in Virginia should not be a burden: service in the military and divorce. With both experiences, Virginia men undergo enough stress that no additional problems should tax their minds and hearts. Deployment for military service does not affect your right to file for divorce in Virginia, thanks to federal legal protection.
The Servicemembers Civil Relief Act (SCRA)
The primary protection you as a Virginia serviceman have is the Servicemembers Civil Relief Act, which allows you to get a 90-day stay of proceedings while you serve overseas or on deployment. You can file for divorce, be deployed, and stay the divorce for up to three months while serving our country. In some instances you can also apply for an additional stay.
How The SCRA Works
The SCRA protects you, but if your spouse is not in the military, it offers her no protection from civil proceedings. This means you can use it to defer or delay a civil action, but she cannot.
Do not look upon this as some shield of invincibility, however. The SCRA requires you to notify the court before an appearance that you are on deployment or will be deployed on the scheduled court date.
Some legal gaps exist in SCRA that could lead to problems for you. If, for example, you appear in court on a motion to divorce, but do not later notify the court of deployment and fail to appear several months later (for child support, spousal support, visitation or similar post-divorce issues), the court will likely rule against you.
The first appearance indicated your ability to comprehend and follow the legal proceedings; your lack of appearance in the related, later matter indicates indifference to the outcome.
Abusing the SCRA
SCRA does not protect your wife, but she can use the aforementioned legal gaps in the SCRA against you. The American Bar Association (ABA) cautions that a wife can comply with existing law by filing a motion after her husband has already made an appearance in court and is then deployed.
Even if she knows you are out of the country, your wife or ex-wife can have a notice of a future hearing sent to your last Virginia address. That is perfectly legal. She “notifies” you of a court date for:
- Changes to child support
- Request for wage garnishment
- Modifications to child custody or visitation
When in court, she can answer honestly that she served you notice of the hearing to your last known address. You knew nothing of the hearing, so neither did your attorney, who could have argued in court that you were deployed and unable to answer in person.
From the Virginia judge’s perspective, you failed to answer to a motion after being duly served. Your wife complied with the law, and you apparently did not. The judge could rule against you.
Tread Cautiously During Deployment
If you are contemplating divorce while deployed, work closely with a Virginia family law attorney to ensure your rights are fully protected. Knowing the SCRA offers the ability to defer proceedings by up to 90 days (with additional discretionary stays possible), you may want to consider the timing of any filing.
Suppose you know you will return to Virginia in three months, after a lengthy deployment. Your attorney can demonstrate that your deployment shows fulfillment of all or part of the necessary six-month or one-year separation required to file for an uncontested divorce.
Your attorney can serve papers on your wife that you are filing for divorce. Your attorney can file papers with a Virginia court and receive a court date. And finally, with your cooperation even halfway around the world, you can use the SCRA to stay the proceedings until your return.
That is a strategic way to use your deployment to be available in Virginia to proceed with the divorce.
Contrast that with a deployed service member who, immediately upon arriving in a foreign posting, asks his Virginia attorney to file for divorce. While the required separation period may be easily proven by the deployment, a 90-day stay on the hearing could be useless if your deployment is expected to last six months or longer.
Call a Military Divorce Attorney Serving Men Only
You can file for divorce in Virginia, be deployed, and continue with the proceedings. Or, you can be deployed, and file for divorce in Virginia. All you have to do is find a Virginia family law attorney willing to work around the obvious challenges.
Time zones and office hours may make the process harder, but with Skype, asynchronous emailing, and other electronic communication, you can proceed. Your attorney can handle the preliminary paperwork, arrange court dates, and even begin negotiating a property settlement agreement with your wife and wife’s attorney.
Even from overseas, you can call The Firm For Men at 001 (from Europe) 757-383-9184 and speak with a real Virginia family law attorney. Contact us online, or if you are leaving on deployment from the Virginia Beach area, stop by our office. We would be happy to discuss military divorce with you, and show you how we protect men’s rights through divorce, property settlement, child custody and post-divorce issues.
Pro tip: Download our Men’s Military Divorce Manual and arm yourself as a military man going through divorce. We are not only Veteran-owned, but the majority of our Hampton Roads clients are military!