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.
Many times the party initiating the dissolution of marriage will have the required documents served on the opposing party only to have the opposing party fail to respond or file an appearance in the dissolution of marriage action. In most cases, this is a relief. As long as the Court has jurisdiction and the other party was properly served, the Court can issue a default judgment against the opposing party. A default judgment is essentially the Court granting the relief requested by the petitioning party because the responding party failed to appear or respond.
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.
The third step the Court must take if the servicemember is not found is for the Court to issue a stay of the action. A stay is essentially a hold of the action. This means nothing can take place in the action until the stay is lifted. Pursuant to the Servicemembers Civil Relief Act, the stay must last a minimum of ninety (90) days. If the servicemember does receive notice of the pending action, they can request a stay as well under section 3932.
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.
As leading military divorce lawyers, we help our clients address and navigate the complexities of divorcing someone in the military. Please contact Anderson & Boback if you are facing a military divorce or have questions about divorcing a soldier especially if you think your spouse may fail to respond to the divorce petition.