As a military member, you are doing a great service to our country.  Have you ever wondered if you are afforded any protections in a dissolution or other civil proceeding?  The answer is yes.  

The Service Member’s Civil Relief Act protects an individual during their service in the military against the following:

  1. Entry of a default Judgment against you;
  2. A stay of proceedings;
  3. Stay or vacation of execution of judgments, attachments and garnishments and
  4. Maximum interest rates

What Is Active Duty

Active duty for a military member of the Army, Navy, Air Force, Marine Corps, or Coast Guard “means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned.”  10 US Code section 101(d)(1).

If you are in the National Guard, active duty means “includes service under a call to active service authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days under section 502(f) of title 32, United States Code, for purposes of responding to a national emergency declared by the President and supported by Federal funds.”  

Protection Against Default Judgments

The protection applies to any civil proceeding or any child custody proceeding.  Before the Court can enter a Judgment, the Plaintiff or Petitioner must file with the Court an affidavit stating whether or not the Defendant or Respondent is in the military or they are unable to determine if the Defendant or Respondent is in the military.

If a proceeding is commenced against you that is covered under this act, the Court may not enter a judgment until after they have appointed you an attorney.  

Vacating a Default Judgment Against You

The Court has the ability to vacate a default judgment against you during your period of military service (or within 60 days after termination/release of service) if you or your counsel put the issue before the Court, so long as the proceeding is covered under this section.  The Court will set aside the Judgment if they find that you were “materially affected” due to your military service in making a decision and you have a “meritorious or legal defense.”

You must file your request to vacate the default judgment no later than 90 days after you have been terminated or released from your military service.

Stay of Proceedings

If you are an active duty military member, the Court “shall” grant you a stay of the proceedings for no less than 90 days, if requested by your counsel or on the Court’s own motion, if the Court finds one of the following:

  1. There may be a defense, and a defense is unable to be presented without the presence of the Defendant/Respondent.  
  2. Counsel, after due diligence, has been unable to contact you or determine if you have a “meritorious defense.”  

Note that this is only for proceedings that have not gone to a final judgment and proceedings in which you have received notice.  You will need to have a letter or other form of communication that describes how your current military duty affects your ability to appear in the matter and states a date when you will be available to appear or a letter or other communication from your commanding officer stating your current military service prevent you from appearing and leave is not authorized at the time of the letter or communication. 

You may also apply for another stay if your military duty is materially affecting your ability to appear in the matter.  If the Court does not grant a second stay, the Court shall appoint you counsel.  

Stay or Vacation of Execution of Judgments, Attachments, and Garnishments

Suppose the Court determines you have been materially affected due to your military service in complying with a Court judgment or order. In that case, the Court may, either on its own motion or shall, upon your application, stay the execution of any judgment against you and vacate or stay an attachment or garnishment of property, money, or debts in your possession or the possession of a third party, whether before or after the Judgment.

This applies to any Court action against you before or during your military service or within 90 days after such service terminates.

Maximum Interest Rate

An obligation or liability that is incurred by you or you and your spouse jointly before you enter military service shall not exceed 6 percent. 

  1. during the period of military service and one year thereafter, in the case of an obligation or liability consisting of a mortgage, trust deed, or other security in the nature of a mortgage” or
  2. During your military service for any other obligation/liability.

Interest rates in excess of 6% during these periods are forgiven.

A full copy of the act can be found here:

https://www.justice.gov/sites/default/files/crt/legacy/2011/03/23/scratext.pdf

Final Thoughts

If you have questions about the Service Members Civil Relief Act and how it applies to a dissolution, child custody proceeding or other proceedings, don’t hesitate to reach out to Navigate Law Group for an experienced attorney to assist you.

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Disclaimer

Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue, you should consult an attorney.