Family Law and the SCRA: How It Works

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Family Law and the SCRA: How It Works

NOTE: This article talks about only one part of the SCRA. Go here to learn more about additional SCRA protections.


What is the SCRA?

The Servicemembers Civil Relief Act (SCRA) is a federal law giving protections to a service member involved a civil law suit. 

The SCRA gives a service member a chance to participate in the case, by either delaying the case or allowing the service member to participate in an alternate way, like a video conference. It may also require the court to appoint an attorney to the service member.

The SCRA cannot stop a law suit from happening.  It is also not a defense in a law suit.  Instead, the SCRA allows a service member a reasonable time to make arrangements to appear in court or an administrative hearing. 

The SCRA does not apply in criminal cases. It only applies in civil cases.

Where does the SCRA apply:

Because the SCRA is a federal law, it applies in every state and U.S. territory.  It applies in all state and federal courts.  It also applies in administrative proceedings.  An example of an administrative proceeding is a child support case that is brought by a State agency, like the Department of Heath and Human Services, where the service member’s child(ren) live.

Who is eligible?

The SCRA does not automatically apply if someone is in the military. A service member must be in military service or within the first 90 days from termination/release.  The military service must keep the service member from putting on or defending the legal case in the normal time that a case would happen.  The service member must prove to the court or administrative body hearing the case that his or her military service is keeping him or her from participating in the case. 

Only service members are protected by the SCRA.  Someone on the other side of a law suit against a service member, like a spouse in a divorce, cannot use the SCRA in the divorce case.  In cases where two people are listed as co-parties (they are both suing:  co-Plaintiffs, or both being sued:  co-Defendants), only the service member and not the co-party can ask for the SCRA protections.  This means if a husband and wife are being sued together (for example, in an adoption), only the service member spouse can ask for  SCRA protections.

Does the SCRA apply to reservists?

The SCRA applies to reservists who are ordered to report for military service.  They must be “affected” by military service.  The SCRA never applies to inactive service members, like those in IRR (inactive ready reserve).

What happens if a service member is reported missing?

If a service ember is reported as missing, he/she is considered to be in military service until found. The SCRA applies.

What is being requested?

A service member asks for a “stay” of the case. A stay is when a case is put on hold.  No action is taken for a set period of time in the court or administrative case.  The stay is designed to give the service member time to arrange for leave or pass so he/she can appear in court or have a deposition taken.

Go here to see and prepare a sample "stay" request

How long is the stay?

            The stay is not for the entire time a service member is in military service, such as an entire deployment.  A stay cannot delay the case indefinitely. Instead, the SCRA allows for a mimum stay of 90 days if the court or administrative agency decides a stay is needed.  If the first stay is about to expire, an additional stay  may be requested if there is good cause for more time.  The service member must show that there is a continuing material effect on his/her ability to participate in the case because of his/her military duty. However, if there is an issue about the children that requires some immediate action by the Court, the Court may be able to move forward on an at least temporary basis.  This is because courts have a duty to look out for the best interests of the children.

What is a deposition?

It is a way to get information someone has about the case or a way to have a service member’s testimony taken so that he or she does not have to go to Court.  The other side of the law suit will set up the deposition.

A deposition is not held in a court room.  No judge is present.  If the other side in the case is represented by an attorney, the attorney will ask the service member being deposed questions.  If the other side does not have an attorney, the other side him/herself will ask the questions.  The service member being deposed will be placed under oath, just like he/she would be in court.  The questions will relate to this case:  what do you know, what are you asking for, etc. If the service member has an attorney, that attorney will be with the service member for the deposition.  If the deposition is going to be the service member’s testimony in court, the service member’s attorney will have a chance to ask questions as well. 

The questions and answers will be recorded by a court reporter.  After the deposition is over, the court reporter will type out all the questions and answers.  Your attorney (or you if you do not have an attorney) and the opposing attorney (or other side if he/she does not have an attorney) will receive copies. The original will be filed in court.  If your case goes to trial, this deposition may be used in court as the service member’s  testimony if he/she cannot appear in court in person, by phone, or by video.

When is a stay requested?

A stay of the legal proceeding can be asked for at any time after the proceeding has been started.

How does a service member ask for a stay?

A service member must show that military service stops him/her from defending or putting on his legal case.  The service member would have to be “materially affected” in the case because of his/her absence as a result of military service.  The service member must file with the court or administrative body hearing the case:

  1. A letter or other communication that explains how his/her current military duty materially affects his/her ability to appear and include a date when the service member will be available to appear, and
  2. A letter or other communication from the service member's commanding officer explaining that the service member's current military duty prevents his/her appearance and that military leave is not authorized for the service member at the time that the letter is being written (for example, the member is in basic training).

“Other communication” could be an email or a call to the court.

How does the court/administrative agency decide?

A stay is not guaranteed.  The judge or hearing officer will decide.  The service member’s actions will be examined by the judge or hearing officer.  Questions the court will ask are things like:

  • Is the service member eligible for leave?
  • If so, has he/she requested leave and been denied?  

It would be helpful if the service member attached the request and denial of leave to his/her letter to the Court or administrative agency. 

The Court is also likely to ask if the service member can be available by

  • Phone
  • Videoconference
  • Email, etc.

If so, the Court will likely decide the service member is available for purposes of the hearing.

When making a decision, the judge or hearing officer will also look to see if the service member has been acting in bad faith.  For example, did service member refuse to follow a court order before being deployed and asking for a stay?

What if the request for a stay is denied?

If the court refuses to grant an additional stay of the case, the court must appoint an attorney to represent the service member in the case.

What happens if a service member does not ask for a stay?

If the service member “appears” in a legal case and does not ask for protections under the SCRA, the case will go forward just like any other case.  A service member can “appear” in a case by writing (for example, signing an acknowledgement of service, or writing to the Court or administrative agency) or by showing up in person.  Once a service member “appears” in a case, if he or she needs a stay, he or she must ask for it.  If a stay is not requested, a court or administrative Order can be entered against the service member.  So, if a service member knows about the legal case, he or she must be proactive in exercising his/her rights under the SCRA.

What happens if the service member does not “appear” in a case?

If a service member is being sued, he or she is a Defendant in a case.  Normally, if a Defendant does not “appear” in the case, a default judgment can be entered against him or her.  A default judgment is a court order that gives the Plaintiff (the person bringing the case) what he or she has asked for.  This happens because the Defendant never responds to the legal papers that are filed in court or with the administrative agency.    However, the SCRA gives some protections to service members before a default judgment can be ordered.

How to get a Default Judgment:

To get a default judgment against a service member, the plaintiff must file with the court an affidavit (written statement made under oath) that either says:

  • to the plaintiff’s knowledge the defendant is not in military service and state the reasons (by including sufficient facts) why he/she knows that, or
  • the plaintiff does not know if the defendant is in the military.

If the Plaintiff lies on the affidavit, he/she can be charged.  Punishment can be a fine or up to one year in jail or both.

When will the court appoint an attorney?

If the Court believes the defendant is in the military and the defendant has not “appeared” in Court, the Court must appoint an attorney for the service member.  The role of the attorney is limited.  The attorney must try to find out if the Defendant is in the military.

How to locate a service member:

The attorney will want to find out what the defendant’s “status “ is.  You can find this information at https://www.dmdc.osd.mil/appj/scra/scraHome.do

To find the location of the primary duty station for a service member, contact one of the following:

Army Active Duty (any member can look up another member on www.army.mil)
Army Worldwide Location
8899 E. 56th Street
Indianapolis, IN 46249-5301
Tel: 1-866-771-6357

Army Reserve (any member can look up another member on www.army.mil)
Commander
ARPERCEN
9700 Page Blvd
St. Louis, MO  63132
Tel: (314) 538-3777

Navy Personnel Command
(PERS 312)
5720 Integrity Drive
Millington, TN  38055-3120
Tel:  (901) 874-3388
Fax: (910) 874-2000

Air Force
HQ/AFPCDPDXIDL
550 C. St. West, Suite 50
Randolph AFB, TX  78150-4752
Tel: (210) 565-2660; (210) 565-1675

Marine Corps
HQMC-MMSB-17
2008 Elliot Road, Room 203
Quantico, VA  22134-5030
Tel: (703) 784-3941

U.S.Coast Guard
Personnel Command
2100 2nd St. W
Washington, DC  20593
Tel: (202) 267-1340
Fax: (202) 267-4985

When should the attorney ask for a stay?

The attorney should ask for a stay on behalf of the service member if:

  1. the attorney cannot find the service member and needs more time to do so or to figure out if there is a defense to the lawsuit, or  
  2. if the attorney finds the service member and decides that there may be a defense to the lawsuit that can only be proved by the service member’s participation.

If the attorney cannot find the service member, the service member will not be bound by anything the attorney does in Court. 

Once the attorney requests a stay, the attorney is not required to represent the service member in the entire case.  How long the attorney represents the service member is a decision for the two of them to make.  The court appointment is limited to finding a service member and requesting a stay of the case.

Who pays for the attorney?

There is nothing in the SCRA that requires the court to pay an appointed attorney.  There may be a state law that addresses attorney compensation by the court.  The attorney can charge the service member.  But, there are cases that say that an attorney who is representing a service member who is exercising SRCA protections during wartime should do so for free, as the attorney’s patriotic duty.

 

What happens if a default judgment is ordered? 

If a default judgment is issued when the service member is in active military service or within 60 days after termination of military service, the service member can ask the Court to reopen the case if:

  1. the service member could not make a defense because of his military service, and
  2. there is a defense to the case.

The service member must ask for the case to be reopened within 90 days after release from the military.  After that, it is too late to reopen the case.

What happens if there is a court order against a service member that he or she cannot follow because of military service?

The SCRA also allows a service member to ask that the execution of judgment against him or her be stayed.  The court will decide using its discretion based upon the information the service member submits to the Court in his or her request for a stay.

March 2013

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