Legal Proceedings

While on active duty, servicemembers might not be able to go on leave to handle a legal or court matter. This is especially true for those stationed overseas. The SCRA includes a number of temporary protections for servicemembers facing this problem.

Protections Against Default Judgment: A Court Order Likely Can’t Be Entered Against You in Your Absence

It could — at least temporarily. Upon motion by an attorney or a court, the SCRA provides for a stay of civil court proceedings for a minimum of 90 days. Likewise, the SCRA protects servicemembers from default judgments — a legal term for court orders that are entered against a party who doesn’t show up for the hearing. Only in limited circumstances can a default judgment order be entered against your servicemember for failure to appear in court because of military service obligations. The SCRA also allows your servicemember to obtain a delay in court and administrative hearings.

If your servicemember is aware of a legal action filed against him or her or has a hearing scheduled, he or she should make an appointment with a military legal assistance attorney or a private attorney to discuss the options. Do not disregard legal or court papers just because your servicemember might be covered by the SCRA; ask a lawyer what you need to do to assert your legal protections. If you learn a default judgment has been entered against you in violation of your SCRA rights, you’ll need to act promptly. You also might have some additional rights under state law.

It should have. However, some courts are unfamiliar with the SCRA, and sometimes default judgments are entered improperly against servicemembers who are protected under the SCRA. If you already have received a default judgment, the SCRA provides relief in reopening the case.

Such default judgments are likely voidable, meaning they can be set aside or vacated by the court. Voidable doesn’t necessarily mean the order automatically is void, but it does mean if you challenge the judgment, a court likely will throw it out.

Yes, so long as your servicemember was on active duty within the last 90 days. Once released from active duty, servicemembers have 90 days to ask a court to undo a default judgment that was entered against them while they were gone. If you find out a court has entered an order against you without your knowledge, talk to your military legal assistance attorney about how to challenge and set aside the order under the SCRA. State law might provide you with additional rights or time in which to assert them.

If anyone files a lawsuit against someone and he or she does not respond or appear in the case, the person filing the lawsuit is obligated to file an affidavit stating whether the person against whom the lawsuit was filed is serving in the military. If the affidavit states someone is in the military, the court cannot enter a judgment against that person unless and until a lawyer is appointed by the court to represent his or her interests. Following appointment of a lawyer for a servicemember in his or her absence, the court will postpone the case for at least 90 days if the lawyer cannot reach the servicemember (e.g., if he or she is in a combat zone) and/or if the servicemember’s presence is necessary to allow the lawyer to present his or her defense.

Most states employ an income-sharing model for calculating child support. Typically, if income goes up while on active military service, so does child support. Many state courts also consider it a change of circumstances if income becomes tax-free. Report substantial increases in income to the court or agency enforcing child support obligations so it appropriately is recomputed. If you have questions, seek help from a military legal assistance attorney or private counsel.

If someone who might know about a person’s military service files a lawsuit against him or her, the affidavit may say his or her military status is unknown. In that case, the court might go forward without appointing that person an attorney and might enter a default judgment as it would for any nonmilitary defendant. In that case, the judgment may be voidable as described above. That said, the Department of Defense Manpower Data Center (DMDC) has a website anyone can use to figure out whether a person is serving in the military. Courts should insist any affidavit of military service be supported by a DMDC certificate if the creditor has enough personal information to seek such a certificate.

There are several possible options available to the dependent spouse and servicemember in this scenario. Each option and the associated risks are very fact-specific, involving an interplay of the SCRA with state law. It is critical that the military couple obtain immediate assistance from a military legal assistance attorney to determine the proper course of action.

Stays of Proceedings: A Court Hearing Involving You Will Likely Be Delayed

The SCRA says if a servicemember is on active duty (or it is within 90 days of the servicemember being released from active duty), you may ask the court to halt the hearing for at least 90 days. In legal terms, this is called a stay of proceedings. The ability of a servicemember — possibly deployed in a war zone thousands of miles away from a state or federal courthouse — to request and obtain a stay of proceedings is a key part of the SCRA.

If you ask the court to halt the hearing, it must do so for at least 90 days. If you need more time, the court might grant you an extension beyond the 90 days, but that’s not guaranteed.

Send the court a letter or other communication (ideally in writing) explaining (1) how military duties materially affect your servicemember’s ability to appear in court and (2) when the servicemember would be available to appear in court. Also, your communication to the court must include a letter or other communication from your servicemember’s commanding officer, stating military duty prevents your servicemember from appearing in court and military leave is not authorized. Military legal assistance attorney can assist in making the proper request.

Follow the same steps as you did when asking for the first delay. This request for an extension is at the discretion of the court. But, if a servicemember has a valid reason for a further delay related to military duties (e.g., deployment), the judge should grant it. Ask the servicemember’s commanding officer to indicate he or she won’t grant leave to attend or, if the servicemember will be granted leave, when that leave will be.

If the court denies a request for an extension, the court must appoint an attorney to represent the servicemember. This attorney will contact you, and you should work with him or her to prepare your defense. Any hearing date should coincide with any rest and recreation leave you may be granted, including some time to meet with your attorney before the hearing starts. Note:Some courts and administrative agencies allow for hearings to be conducted by video teleconferencing.

Protections Against Judgments, Attachments, Liens, and Garnishments

If a lawsuit is filed against you and your servicemember, you have the right to due process of law. In other words, you have the right to appear in the case and contest the matter. If you make an appearance and lose, a court order or judgment may be validly entered against you. The SCRA protects you only if

  • a default judgment is entered against you while your spouse is on active duty, and
  • your spouse’s military service prevents him or her from appearing or being actively involved in the case.

If you appear in the case and take an active role in your defense, either through representation of yourself or by a lawyer, any resulting orders or judgments are valid and cannot be challenged under the SCRA.

If the conditions of military service make it difficult or impossible to comply with a court order, the servicemember may request the court hold off (or stay) enforcement of the order until he or she is able to comply. This can be particularly helpful if an order is entered against your servicemember that requires paying a financial obligation or that imposes a wage garnishment. If military service makes complying with these orders difficult, your servicemember can ask for a stay. A military legal assistance attorney or other counsel can assist with a request for a stay. Prompt response to court orders is required even if your servicemember can’t comply with them; otherwise, the court can find your spouse in contempt.

If the default judgment order was entered in violation of the SCRA, challenge the validity of the judgment (i.e., seek to reopen the default judgment). Also, request an immediate stay of the garnishment (for commercial debts, this is known as an involuntary allotment) until the court can determine whether to throw out the default judgment. A military legal assistance attorney can help with requesting the stay and filing a motion to vacate the default judgment. Keep in mind this applies only to garnishments resulting from court orders. Get a notice from the Defense Finance and Accounting Service (DFAS), the entity that issues your pay, or your pay center before pay involuntarily is allotted to repay a commercial debt. That is the time to tell DFAS or your pay center the creditor didn’t honor your servicemember’s SCRA rights. If pay has been garnished by the military to pay debts to the government, this collection is not subject to the SCRA, but your servicemember has the right under military regulations to request a waiver, cancellation, or remission of the debt.

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