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Servicemembers Civil Relief Act and its impact on Texas divorce cases

The attorneys and staff with the Law Office of Bryan Fagan take a great deal of pride in being able to serve former and current members of our military in a variety of family law proceedings. While it may feel unfair, the reality of the situation is that your life does not go on “pause” just because of a family law situation. Your work, personal life, children’s lives, and everything in between would still keep going even though you are involved in a family law case. While your focus may be primarily on the family law situation that doesn’t mean these other areas of your life can be neglected. 

On top of that, the divorce process for a military member can be more complicated. No, the overall process is the same for a military divorce as it is for a civilian divorce. However, there are elements to your case in a military divorce that are unique and must be considered to have properly planned out a divorce case. If your divorce has not yet been filed, then reading through blog posts like this is a great way for you to start the process of gaining information and developing a strategy on how to proceed. If you or your spouse have filed for divorce, then you can make up for lost time and develop a coherent strategy in part by gaining as much information on this subject as possible.  

Determining where you can start is a natural place to have questions about when you are just considering divorce for the first time. As we talked about a moment ago, you have other things going on in your life. To be able to plan out a divorce on your own can be a difficult expectation for anyone. For that reason, we recommend contacting the attorneys with the Law Office of Bryan Fagan when you believe that a divorce is upcoming in your life or if you have been served with divorce papers that were filed by your spouse. A free-of-charge consultation with one of our experienced family law attorneys can be obtained six days a week. 

Can you file for divorce in Texas if you are not currently living here?

Texas is home to many military veterans and active-duty service members. Whether you are living in Texas currently or consider Texas to be your home base then you need to know how you can file for divorce here. If you are an active-duty service member, then there are two ways that you can qualify to file for divorce in Texas from a jurisdiction perspective. If you lived in Texas for at least six months before leaving the state for your military duties and in a specific county where you want to file for at least 90 days, then you can file for divorce in that Texas county. The same can be true if your spouse is a military member. Of course, if you are currently living in Texas and meet the guidelines then you can file for divorce in Texas. 

One important factor to keep in mind, however, is regarding your minor children. Having children under the age of 18 that will be a part of your divorce case can complicate the entire question of jurisdiction or residency as they pertain to divorce in Texas. We just covered how the jurisdictional requirements for a Texas divorce are: live in Texas for the prior 6 months before filing a divorce and live in the county that you plan to file in for at least the preceding 90 days. This is straightforward but can be impacted by the children that you have before the court. 

Jurisdiction to issue orders on topics involving your property is one thing, but when it comes to your children it may be a different subject altogether. Bear in mind that if your children have lived outside of the state of Texas for at least the past six months then it is likely that a Texas family court judge would not have jurisdiction to issue child custody and conservatorship orders regarding your kids. This means that you can get legally divorced in Texas but that the court would not be able to issue any orders regarding your children. This can complicate matters and make it seem like there was no point in getting divorced in Texas if you cannot get the court to issue custody orders. 

This would put you in the unenviable position of needing to file for divorce in Texas and to file a child custody case in another state that has jurisdiction over your children. Two family cases at the same time in two different states do not sound like a great time. To try to avoid situations like this you should contact one of the attorneys with the Law Office of Bryan Fagan today. 

The general information in this blog post should be helpful to a degree, but you are going to need to obtain specific information about your specific circumstances to know how best to proceed. If there is any way for you to avoid having to go through with filing a two-family case in two states you should try to do everything in your power to avoid that. While there is only so much you can likely do at this stage, one of our attorneys can provide you with information about what you are looking at as far as court cases as well as information about how our office can assist you to sort out whatever circumstances that you are facing down.

How do you serve your spouse with notice of the divorce if on active duty?

The notice requirement in a Texas divorce is an essential part of getting your divorce case started and off to a good start. Filing for divorce is important but you cannot stop the process there. Rather, you need to be able to notify your spouse of your having filed for divorce. Imagine writing a letter to someone and then putting that letter in your dresser drawer. Even if you put the letter inside of a stamped envelope with the person’s address on it, the other person would not have any idea of your having written the letter.

The same goes for providing notice for your spouse for a divorce case. You need to be able to provide him or her with notice of your having filed for divorce for the case to proceed. If you file for divorce and do nothing more eventually your case will be dismissed for failure to do anything after that. The moral of the story is that you need to file a divorce and then serve him or her with notice of your having filed. 

In a typical divorce situation, this is a straightforward step. You would file the original divorce petition and then pay a process server or constable to pick the paperwork up from the courthouse and serve them to your spouse. This can occur at an address that you provide to the process server. Once the process server does their job and provides the paperwork to your spouse, he or she would fill out an affidavit confirming service was completed and return that to the clerk of your court. Now your case can begin. 

Your spouse is an active duty servicemember complicates this step in the process, potentially. Locating your spouse when he or she is living with you or when he or she works at an address that is known to you is not that complicated. Trying to find your spouse when or she is halfway around the world at an undisclosed location is much tougher. The military branches have specific methods for the service of personnel. You and your attorney can investigate those methods and make sure that you are acceptably attempting service. 

On the other hand, your spouse could agree to sign a waiver of service form. A waiver of service is an affidavit where your spouse would agree that he or she waives their right to be personally served with notice of your having filed for divorce. That waiver of service would be filed by the clerk and would absolve you of having to serve him or her with paperwork. This is usually a step taken in situations where it is an agreed divorce and you two agree on almost every subject related to the case. 

What is the Servicemembers Civil Relief Act?

The Servicemember's Civil Relief Act is a law that will protect a military member who is on active duty in the event of a divorce or any other pending civil case. The basics of the law as far as a Texas divorce is concerned would be that if your spouse is a military member who is serving overseas, and you are living in Texas and file for divorce you would not be able to obtain a default judgment against your spouse if he does not file an Answer to your Divorce Petition in the requisite period. 

In a typical, civilian divorce your spouse would have approximately twenty days to file an Answer to your Original Petition for Divorce. The answer is not a detailed legal document in most cases. It ends up being a general denial of the allegations that you made in your Original Petition most of the time. However, if your spouse does not file their Answer in the required time then you can potentially proceed without him. That means you can draft a Final Decree of Divorce using the terms, arrangements, and outcomes that you want. If those outcomes are not unconscionable a judge is likely to grant them and divorce you based on those terms. 

What can follow, however, is your spouse catching word of what you did and then filing a motion for a new trial. If that motion for a new trial is filed within thirty days of you getting the default divorce, then a judge is very likely to approve that request and then allow your case to start anew. If you think this is a plausible situation from the perspective of an all-civilian divorce, imagine the sort of weird circumstances that can come into play in a military divorce. 

If your spouse is stationed somewhere on a different continent, then how he gets served with divorce papers may not be clear-cut. Even if he does get served personally, he may not be able to attend to filing an Answer quickly depending upon what he is doing for his military service. To avoid a situation like this with military members like your spouse, the law stays the divorce until 90 days have passed and can properly attend to the divorce.  90 days is approximately three months- one would think that your spouse would be able to get to a point where they can take a breath and now file an Answer within that time. Even if it means hiring an attorney from across the ocean back here in Texas it is not unreasonable for him to get his answer filed on this schedule. The Servicemember’s Civil Relief Act may delay the divorce, but it cannot prevent your divorce from ever occurring. 

Keep in mind, however, that Texas family court judges can delay the divorce until your spouse has completed the active-duty portion of their military service. That can add an indefinite delay to the divorce which can be frustrating to be sure. Some family court judges have delayed the divorce until 60 days after a military spouse has returned home from active-duty service. However, these situations occur in extreme situations where a person is engaged in a war, conflict or other armed combat and the additional 90-day delay provided by the law is still not enough to give the military member a fair opportunity to respond to the petition for divorce. 

On the other hand, your spouse does have the power to waive their right to delay the divorce that is provided under the Servicemembers Civil Relief Act. If your spouse and you have an understanding about the divorce, and it is an agreed divorce then your spouse may choose to have a waiver of service sent into the court and can state in writing that he waives the protection of the SCRA, as well. This would allow your case to proceed with minimal delay. 

What about your minor children? How will military service impact that part of your divorce?

For as long as your spouse is on military deployment the Texas family court can issue temporary custody orders that take this into account. For instance, if the standard possession order allows your spouse to have first, third, and fifth weekend periods of possession with your child then that obviously would not be possible if your spouse is stationed in another country. In that case, your spouse may file a motion for temporary custody orders to go into effect for as long as their deployment is ongoing. 

Practically speaking, here is how a visitation transfer may work in your situation. If your spouse is named as the parent with visitation rights to your children, then the court may agree to allow your spouse’s mother to step into your spouse’s periods of possession to take your children on the weekends. This could occur until your spouse is ready to return home from deployment/active duty. However, the judge would need to find that it is in the best interests of your child for this to occur. If the judge declines to allow this to occur, then your spouse in the alternative could ask the judge to order "make-up" periods of possession so he would not lose the time he lost with your children due to their service obligations. 

Final thoughts on the Servicemembers Civil Relief Act

Military divorces can be among the most difficult divorce scenarios due to the circumstances that are involved. It can be difficult enough to focus on your work or your life in general when a divorce is ongoing. Military members have jobs where their day-to-day responsibilities could involve saving lives or generally having someone else's well-being literally in their hands. As a result, it is important to be able to devote their full focus to their work. This is a hard ask when that person is facing a divorce. 

However, the Servicemembers Civil Relief Act can and does protect servicemembers who are on active duty. There is much more to this law than may meet the eye, however. If you have questions about how the law may impact your family, your divorce, and your children then consulting with an experienced family law attorney may be just what you need to investigate at this stage of your case. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case. 

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