In a divorce action between spouses, special procedural rules apply if one or both spouses are military members. The Federal Servicemembers’ Civil Relief Act (SCRA) entitles active military personnel to a continuance in any action. This includes divorce or custody cases. To qualify, the person must show that military service prevents them from attending court.
The Massachusetts Appeals Court recently handled a case. In it, a husband claimed that his SCRA rights were violated. He argued the Probate and Family Court denied his request for a continuance on several hearing dates related to his divorce, custody, and support issues. In Fazio v. Fazio, the husband tried to delay a hearing by sending a letter the day before the scheduled date. His commanding officer wrote the letter, stating that the husband’s unit would undergo pre-deployment training for about a year. The letter requested to postpone all hearings because of this. The judge, expressing frustration with the last-minute request, declined to extend a stay of the hearing. The husband appealed.
The Appeals Court agreed with the trial judge. It noted that the request did not meet the SCRA’s requirements. “The commanding officer’s communication provided no details about the husband’s predeployment training and did not explain how the requirements of the training mission prevented the husband from taking part of one day to attend a court hearing,” the Court noted. “Nor did the commanding officer state that the husband could not obtain leave to appear at the hearing at any time during the two months prior to mobilization.” Because the husband’s requests were inadequate, the trial judge was correct in not granting the stays under the SCRA.
Moreover, the Appeals Court reviewed the temporary orders that the trial court granted. The Appeals Court found the temporary child support orders deviated from the guidelines, thus abusing discretion. However, it affirmed the judge’s division of marital property, granting the wife about two-thirds. “[T]he judge found that the parties contributed equally to creation of the marital estate prior to separation, but that the wife ‘played a far more significant role in the preservation of the estate’ after the separation,” the Court stated. “The judge’s subsidiary findings, which the husband does not challenge, support her rationale. Reversal of the property division is not warranted.”
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