In response to the war between Russia, from the invasion of Ukraine, the United States Military has activated many thousands of servicemembers. This has included members of the navy, surveillance, aircraft and artillery units. Many of the servicemembers being activated are a part of the NATO response force team. Some of the servicemembers have active civil cases, including family law litigation. This can include active divorce cases, child support cases, child custody modifications, among other types of cases. When servicemembers are deployed unexpectedly, for any period that the servicemember is unavailable due to his or her employment or active duty service, the servicemember can seek a stay in their pending litigation.
The “stay” prevents the court from proceeding with litigation without the servicemember’s presence. Chapter 50 of Title 50 of the US Code provides for the Servicemembers Civil Relief Act (SCRA). The SCRA provides a method for asking for the stay. Essentially, the court is able to order an automatic and required stay if four elements are shown to the court. The court requires proof of these claims through a letter or other verified document, but one the burden of proof is met, the court is required to provide a stay in deference to the servicemember’s active duty service. The elements required are:
- Facts showing that the military duties materially affect or limit the servicemember’s ability to appear in the proceedings;
- A starting date when the servicemember will be unavailable and available;
- A letter from the servicemember’s commanding officer verifying that the servicemember’s military duty prevents the appearance;
- A letter from the servicemember’s commanding office confirming that military leave is not authorized for the servicemember;
The Court has the ability, if aware of the need, to issue the stay on its own determination but is required to do so if the servicemember requests it and meets the requirements as outlined above. The request for a stay does not require any specific motion or other items, but rather simply that the four (4) elements outlined above are complied with.
If a litigant asking for a stay does not follow the required elements above, the court has the ability to deny the requested stay. For example, in Kansas, the In re the Marriage of Bradley case, 137 P.3d 1030 (Kan. 2006), when a servicemember asked for a stay but failed to provide a statement about how his military duties materially affected his ability to appear and when he would be available to appear and did not provide a statement from his commanding officer, his request for a stay was denied.
The stay order can be granted for an initial 90 day period and the court can allow an additional stay period as well pursuant to USC 3931(b)(1) and (d).
If you are called to active duty and you anticipate requiring a stay order, it is important that you work with knowledgeable and experienced family law legal counsel who can guide you through the process of providing the detailed and specific information that the court expects to grant a stay order request. If you are servicemember, even while your case has an active “stay order” it is crucial that you have counsel involved to assist with renewing the stay if needed, as well as to provide necessary legal guidance as issues may arise. In some instances where the servicemember is granted a stay and then failed to comply with requirements or court orders, the judge has the authority to revoke the stay order and move forward with the case.If you are a military servicemember, thank you for your service. If you believe that we can assist you with your family law matter in Kansas or Missouri, please call our office today for your consultation at (816) 208-8130 so that we can help you determine if a stay order is appropriate or needed for your case and situation.