Know your rights as a service member - Marine Corps News | News from Afghanistan & Iraq - Marine Corps Times

Know your rights as a service member

Like all service members, Spc. Matthew Kleman is protected from civil court proceedings being conducted in his absence for official military duty — such as deployment — under the Servicemembers’ Civil Relief Act.

The unusual twist in his case is that he never got to assert his SCRA rights because he didn’t know a divorce court proceeding in which he was named was underway.

A “Waiver of Service” document bearing Kleman’s signature, which he says is forged, was filed in court. A signature affirms that he received a copy of the divorce petition, and that he agreed the case could be taken up without further notice to him.

The document also states, “I enter my appearance in this case for all purposes.” That statement gave the court the go-ahead to make decisions without the presence of Kleman or a lawyer representing him — essentially waiving his rights under the SCRA.

A crucial aspect of his case is that his wife apparently did not inform the court that the couple has a son, who will turn 2 this month. As such, the issue of custody is not addressed in the divorce papers.

So what are Kleman’s rights?

If the service member wants the divorce case reopened, procedures vary from state to state, said retired Army Col. Mark Sullivan, a retired judge advocate general who specializes in family law and is the author of the American Bar Association’s military divorce handbook.

Sullivan said that under the SCRA:

• If a person has not made an appearance in a court proceeding — or waived the right to that appearance — it is the court’s responsibility to determine if that person is a service member. If so, the court cannot enter a default judgment against the service member without appointing an attorney. A default judgment is any order, ruling or decree that is adverse to the service member’s interest.

• Based on the request of the service member, or his attorney, or on the court’s own action, proceedings must be postponed for at least 90 days if the court determines there may be a defense that can’t be offered without the service member being present, or if counsel has been unable to contact the service member to determine if there is a such a defense.

• If a judgment has been entered against a service member, a court must reopen the case if the member’s ability to offer a defense was materially affected by his military service.

Service members who leave the military may file such petitions up to 90 days after separation. For service members who remain on active duty, applicable time limits vary from state to state, Sullivan said.

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