Posted On: April 19, 2013

Georgia Military Divorce: Service Members Civil Relief Act

The Servicemember's Civil Relief Act (SCRA), an expansion and improvement of the former Soldiers' and Sailors' Civil Relief Act (SSCRA), can have an impact on Georgia divorce cases. See USC APPX. Sec. 522. The SCRA provides a wide range of protections for individuals entering the military, service members called to active duty in the military and deployed service members. The SCRA is intended to postpone or suspend certain civil obligations to enable service members to devote full attention to their military duty. A few examples of such obligations a service member may be protected against are: outstanding credit card debt, mortgage payments, pending trials, taxes, termination of leases.

Additionally, the SCRA also applies to divorce cases and to child custody actions where the absence of the military parent would materially impair his or her ability to prosecute or defend his or her rights to custody of a child. Derby v. Kim, 238 Ga. 429 (1977). In order to take advantage of the SCRA, the military service member must apply for or request a stay of the judicial proceedings. The service member must request a stay of judicial proceedings regardless of whether the service member is the plaintiff or defendant in the civil action. The SCRA requires that the service member request the stay of proceedings by making the statement that he or she is at the time actively in military service. Unless there is evidence that the servicemembers rights, as a litigant, will not be materially affected by a determination of the pending proceedings, it is mandatory that the application be granted. Parker v. Parker, 207 Ga. 588 (1951). Furthermore, it has been held by the Georgia Supreme Court that it is impossible for a wife to obtain alimony by cross-action against her service member husband without his waiver of the SCRA’s provisions, even where the husband has initiated the proceedings. Id.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC