Service Members Civil Relief Act Provision on Family Law Proceedings

Congress passed the Servicemembers Civil Relief Act (SCRA) in 2003 to replace and update the Soldiers' & Sailors' Civil Relief Act of 1940, with the intent of protecting members of the nation's armed forces from legal actions while on duty so that they can devote all of their attention to the task of defending the country. The SCRA applies to all civil actions that might be brought against an individual, such as those involving credit card debt, mortgages and lease issues. Since family law cases such as divorce and child custody matters are also civil actions, the provisions of the SCRA apply to these matters and military families must be aware of the ways that the SCRA can affect their cases.

Protection from Default Judgments

One of the biggest protections for service members that the SCRA offers is a shield against default judgments. When a person files for a default judgment in a paternity, divorce or custody matter, he or she must submit an affidavit stating whether or not the person against whom he or she is seeking judgment is in the military. If the person is in the military, the court has the obligation to appoint that person counsel. The lawyer then must ascertain whether the person is actually in the military and, if so, request a stay of proceedings on the client's behalf.

If a court issues a judgment in a matter without this affidavit, the judgment is voidable. The servicemember may reopen the case if he or she can show that military service prevented him or her from mounting a defense. The court must reopen the case when:

  • The court entered judgment during the servicemember's military service or 60 days immediately after
  • The servicemember's duties in the military prevented him or her from adequately defending his or her interests in the matter
  • The servicemembers has a defense
  • The servicemember applies to reopen the judgment during military service or within 90 days of its end

For the purposes of the SCRA, military service entails total military service, ending with Estimated Time of Separation (ETS) or retirement, not just the particular tour or assignment that prevented the servicemember from appearing in the case.

Stay of Proceedings

Another provision of the SCRA that applies to family law actions is the stay of proceedings. The court may stay proceedings for 90 days on its own motion, and must stay proceedings on the motion of a servicemember, in the following circumstances:

  • The servicemember is in military service or was within the last 90 days
  • The servicemember had actual notice of the proceeding
  • The servicemember makes a written application indicating how his or her service affects his or her ability to defend his or her interests in the case and a date when the servicemember may appear in the matter
  • The application contains a note from the servicemember's commanding officer that the servicemember may not have leave to attend to the matter

The court must grant the first 90 day stay to servicemembers who petition for it and meet the listed criteria. Thereafter, servicemembers may petition for additional stays if they continue to meet the criteria but the court need not grant them if the servicemember is represented by counsel.

Courts have the ability to work with servicemembers to protect their interests while still allowing proceedings to go forward, however. Some courts allow testimony via telephone or videoconferencing equipment and can try to schedule court dates during the servicemember's authorized leave.

If the court denies a servicemember's petition for a stay of proceedings, the servicemember may not use the SCRA to set aside a default judgment in the matter.

Military members and their families are under a great deal of stress and that stress is only aggravated when the family goes through a divorce or custody battle. Not understanding the special protections in place for legal actions involving service personnel can make the situation even more trying. If you are a member of a military family dealing with a family law issue, contact an experienced attorney who can help ensure that the process goes as smoothly as possible.