Servicemembers Civil Relief Act’s Effect on Family Law Cases
The Fourth of July is a wonderful time for individuals to think back on and appreciate the liberties they have as a result of residing in the United States. Millions of courageous Americans have devoted their lives to serving in the military in order to safeguard the ideals this country stands for.
However, moving regularly to various states and occasionally foreign nations is a common part of modern military service. As a result, much military personnel rarely stay in one place for an extended period of time. Unfortunately, a service member’s military obligations can occasionally be used by creditors and other individuals.
While the service member is gone on military duty, creditors like lenders, credit card companies, landlords, and even the servicemember’s spouse may attempt to file a lawsuit. These litigants may be aware that the service member has no realistic chance to provide a defense in court. As a result, the United States has acknowledged particular legal protections for the service member under the SCRA in order to prevent parties from launching a case while a service member is preoccupied with their military service.
The Servicemembers Civil Relief Act: What Exactly Is It?
The Soldiers’ and Sailors’ Civil Relief Act, a federal statute passed by the US Congress in 1940, was created to lessen the financial burdens associated with military service while service members were deployed or otherwise occupied with military obligations abroad.
The current Servicemembers Civil Relief Act, which Congress passed in 2003, amended and enlarged upon the terms of its predecessor. While service members are sent to battle or on a temporary assignment abroad, the legislation suspends civil legal actions.
Protective Measures Offered by the SCRA
Title 50 of the United States Code contains the SCRA’s regulations. Service members who are unable to defend themselves in court or react to legal claims because of their military obligations are given additional protections under these regulations.
The SCRA offers the following protections:
- Protections from default judgments: If a service member misses a court date because of military service, the court must delay the case for at least 90 days and not enter a default decision.
- Interest rates limited to 6%: During periods when service members will be away due to military duty, interest rates may not be applied that are higher than 6% yearly.
- Protection from attempted repossession: Under the SCRA, creditors are prohibited from attempting to repossess property while a service member is engaged in active duty.
- Relief from foreclosures: Creditors are prohibited from foreclosing on a mortgage while a homeowner is serving in the military and for up to a year following their return without a special court order.
- Termination of an apartment lease: Under the SCRA, a service member may discontinue a lease for a residential property by giving written notice to the landlord and a copy of their deployment or “permanent change of station” (PCS) orders.
Default Decisions in Family Law Cases
A service member may request a stay of proceedings under 50 USC 3931 if they choose not to present. Divorce and child custody disputes fall under this. Courts are prohibited by Section 3931 from adjudicating a service member in default for failing to present in the aforementioned proceedings.
A default judgment describes a situation when one party does not show up for a court hearing and the court rules against the person that did not show up. As long as the plaintiff appears before the court, default judgments are automatically in their favor. However, the SCRA mandates that before making a default judgment, the plaintiff must submit to the court a sworn statement verifying or denying the other party’s military status, together with any supporting papers or other evidence.
If it becomes out that the defendant is a member of the military, the SCRA forbids the court from proceeding to judgment without first appointing a counsel to represent the defendant. The chosen attorney cannot lawfully bind the service member or waive a defense on their behalf if they are unable to locate them.
The SCRA offers a strong defense for service personnel in cases involving property partition and legal actions to enforce divorce judgments. Because of this, a party attempting to seize a service member’s property or bring contempt charges against an absent service member may not succeed in getting a default judgment against them while the latter is engaged in active duty. The issuing of default judgments against a military service member is highly challenging under the SCRA, but it is not impossible. As a result, military members who are worried about civil lawsuits should still seek legal counsel on their options and rights under the SCRA.
Absence from Family Court Proceedings
Active duty service personnel who receive notice of the legal action but are unable to present because of their military obligations may request a stay of the proceedings under Section 3932. The court must grant a request to delay the case for at least 90 days. The request must contain a statement explaining how their military obligations make it impossible for them to attend in court, as well as a statement from their commanding officer supporting that assertion.
Therefore, before starting judicial proceedings or rendering judgments in the absence of a defendant service member, courts must follow the processes outlined in the SCRA. For instance, a spouse claiming a portion of the service member’s military benefits may not attempt to get a default judgment based on the fact that the service member was deployed while also claiming a portion of the benefits.
Furthermore, the SCRA’s processes must be followed in modification cases involving issues like spousal support, child support, and child custody. Importantly, courts must grant requests to halt proceedings while a service member is unable to present owing to active duty. As a result, it is essential that service members who want to benefit from the SCRA’s provisions speak with a lawyer who will make the request on their behalf. For more details, check https://www.servicememberscivilreliefact.com/.