Lately, I have had cause to spend a significant amount of time reviewing the Servicemembers Civil Relief Act (“SCRA”), and it occurred to me how little I know about the Act and perhaps how little other members of the public know about the Act.
The purpose of the SCRA is to allow military men and women to have a means to press pause, if you will, on a court action while they are engaged in active service, to provide servicemembers with some relief from interest payments if their active duty service rendered them unable to pay the same, to prevent default judgments from being entered against servicemembers when they cannot respond to the action because they are serving our country, and to provide relief in other areas as well.
The SCRA does not apply in all cases and cannot be requested without some proof of the hardship involved. I do not intend to address the full Act, and if you would like to read the SCRA to see the other areas in which it may apply, then follow this link to a PDF of the document.
In family law cases, it is probably most likely that a servicemember would request a stay of a proceeding until he or she is capable of defending against the same. A stay essentially pauses the action until the servicemember is available.
A servicemember may request a stay if (1) he received notice of the hearing (if he didn’t, then he would be asking to set aside the default, not stay the hearing); and (2) he is in military service (as defined by the Act) or within 90 days following his release from military service.
In order to request a stay, a servicemember must file his application with the court prior to entry of the final judgment. The application must include: (1) “A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear;” and (2) “A letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.” 50 U.S.C. App. §522. Failure to meet either of these two requirements will likely result in the application being denied.
If you are called to active duty in the midst of litigation, or if you are served with a civil action (including a family law action) while serving, consult with an attorney knowledgeable in the SCRA to see If you qualify for relief. If you intend to request a stay, make sure that you gather the above documents as quickly as possible in order to ensure your best chance at success.