People should take some time on the Fourth of July to reflect on and be grateful for the freedoms they enjoy as a result of living in the United States. Millions of brave Americans have served in the armed forces, risking their lives to protect America’s values.
On the other hand, modern military service sometimes requires frequent relocation to other states and even other countries. Therefore, many people in the military don’t tend to stay in one place for very long. Creditors and other people may try to take advantage of a service person by piggybacking on their military duties.
Lenders, credit card companies, landlords, and even the service member’s spouse may try to launch a lawsuit while the servicemember is away on military duty. It’s possible that the plaintiffs know that the military member has no chance of winning in court. Thus, the United States has recognised special legal protections for the service member under the SCRA to preclude parties from initiating a case while a service member is focused on military service.
What Is the Servicemembers Civil Relief Act?
The purpose of the federal Soldiers’ and Sailors’ Civil Relief Act, enacted by the US Congress in 1940, was to alleviate the financial demands of military duty for those serving in the armed forces who were deployed or otherwise preoccupied with military obligations outside the country. In 2003, Congress passed a new version of the Servicemembers Civil Relief Act that expanded and improved upon its predecessor. Civil lawsuits are put on hold while military members are out on active duty, whether that be in a war zone or on a short-term assignment.
Security Precautions The SCRA’s rules can be found in Chapter 50 of the United States Code. As a result of their military commitments, service personnel may be unable to respond to legal claims or defend themselves in court. These regulations provide additional protections to such individuals.
The SCRA safeguards include the following:
- Default judgements are avoided by requiring the court to postpone proceedings for at least 90 days if a service member misses a hearing because of military service.
- With a 6% cap on interest rates: Interest rates more than 6% per year are prohibited during periods in which service members will be absent due to military duty.
- Protection from repossession attempts: Creditors cannot try to reclaim property from a service member who is on active duty thanks to the Servicemembers Civil Relief Act (SCRA).
- While a servicemember is on active duty and for up to a year after their return, creditors cannot foreclose on their mortgage without a court order.
- Under the SCRA, a service member can cancel their apartment lease by providing written notification to their landlord along with a copy of their deployment or “permanent change of station” (PCS) orders.
The Use of Default Judgments in Family Law
If a service member does not choose to appear in court, they can seek a stay of proceedings by filing a motion under Section 3931 of Title 50 of the United States Code. Disputes involving divorce and custody of minor children fall under this category. According to Section 3931, a court cannot find a service member in default for failing to appear in the aforementioned processes.
When one party to a legal proceeding does not appear in court for a hearing, the other party is said to have “defaulted” and the court will issue a ruling against the absent party. The court will rule in favor of the plaintiff if they file a complaint and then show up to court. The SCRA, however, requires the plaintiff to submit to the court a sworn statement proving or denying the other party’s military status, along with any supporting papers or other proof, before a default judgment can be entered.
The SCRA prohibits the court from moving to judgment without first appointing a counsel to represent the defendant if it is discovered that the defendant is a member of the military. If the military member cannot be located, the attorney cannot bind them or waive a defence on their behalf.
When it comes to property division and enforcing divorce judgements, service members have a solid legal defence according to the SCRA. This means that a non-serving party may not be able to secure a default judgment against a serving party in order to confiscate their property or pursue contempt charges against them while they are deployed. The SCRA makes it difficult, but not impossible, to obtain default judgments against active-duty military personnel. Consequently, service members concerned about potential civil litigation should still consult an attorney about their choices and rights under the SCRA.
Not Appearing in Family Court
If a member of the armed forces is served with process for a judicial action but is unable to appear due to military responsibilities, he or she may seek a stay of the proceedings under Section 3932. A request to adjourn the case for 90 days must be approved by the court. A statement from the service member’s commanding officer attesting to the fact that the service member’s military duties prevent them from appearing in court is required to accompany the request.
Therefore, courts must adhere to the procedures provided in the SCRA before initiating judicial proceedings or making judgements in the absence of a defendant service member. As an example, a spouse who is entitled to a share of a service member’s military benefits cannot exploit the fact that the service member was deployed to obtain a default judgment.
Spousal support, child support, and child custody modification proceedings must also adhere to the SCRA’s procedures. When a service member is unable to appear in court because of active duty, the court must honor his or her request to postpone proceedings. Accordingly, service members who wish to take advantage of the SCRA’s protections should consult a lawyer who can submit the necessary paperwork on their behalf. Look at https://www.servicememberscivilreliefact.com/ for further information.