If a petition for divorce is filed and the other person doesn’t show up, then a person who is the plaintiff, the person who’s filed the petition can move for what we call a default judgment. If a default judgment is awarded to one of the spouse’s, they could get everything they want because the other spouse hasn’t responded. You can get whatever you have listed in your complaint. Now what the ServiceMembers Civil Relief Act does is make sure certain basic requirements are met prior to their being granted a default judgment. One of the things that has to happen if somebody is a member of the military, then there has to be an affidavit filed as it relates to that by the plaintiff. What that does is puts the court on notice that the other spouse is in the military.
The other thing that has to happen is that in the event that a person is found to be in the military, then they have to be appointed what we call a guardian ad litem, which is a fancy way of saying an attorney who’s looking out for the interest of someone else. In West Virginia law, there are several categories of people who can be appointed a guardian ad litem. Most frequently it happens with children, but it could also be members of the military that they represent. It can be people who are incarcerated and also people who don’t have the mental capacity to act on their own behalf. What happens is if this affidavit is not filed, or if a guardian ad litem is not appointed, that’s grounds for getting the default judgment set aside. If one does find out about a proceeding, it’s always in one’s best interest to contact an attorney if in the military so they can start working on it regardless.
There are certain basic protections that are found in the law when it comes to these default judgments being granted against members of the military. For example, if one spouse is filing a divorce against somebody who’s in the military, it’s very important for that spouse to be aware of this. If filing any kind of child custody action or any action in family court, it’s important for one to do this because if the proper procedures are not filed, what’s going to happen is one may be starting all over. The case is going to go back to square one. Also, could cost one a lot more in fees as well. That’s one particular provision. It could be very important to know this provision and other provisions found in the law if ever about to experience a divorce in West Virginia.