Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act (SCRA), like its predecessor, the Soldiers' & Sailors' Civil Relief Act of 1940, offers a variety of legal protections for service members. Two of those protections are most relevant to family law: the stay of civil proceedings, and relief from civil judgments. The remainder of the protections, while important, do not apply to family law (e.g. provisions governing leases, taxes or insurance, though they may have a bearing on whether a court has jurisdiction over the member). For information about all of the act’s protections, see this excellent overview: Service Members Civil Relief Act,

The SCRA applies to all judicial proceedings, including initial dissolution cases, post-decree matters, as well as to administrative proceedings, but not to criminal cases.

SCRA protections apply to active duty members, reservists, and National Guardsmen who are called up by the President or Secretary of Defense for a period of more than 30 consecutive days. 50 U.S. Code § 3911.

Stay of Civil Proceedings

Pursuant to 50 U.S. Code § 3932, the court may stay proceedings for at least 90 days on its own motion, and shall stay proceedings upon application by a member who meets these criteria:

  1. The applicant is in the military service, or within 90 days after it ended,
  2. The applicant has actual notice of the proceeding,
  3. The application is in writing, and includes facts stating how military service materially affects ability to appear, and a date when the member may appear, and
  4. The application includes a communication from the service member's commander that the military duty prevents appearance, and leave is not available.

The initial 90-day stay is mandatory. Thereafter, the member may apply for an additional stay, using the same criteria. The court may deny a subsequent application, however, providing that an attorney is appointed to represent the member.

Simply being stationed overseas, thereby making it more expensive to appear, does not materially affect a member's ability to appear - judges well know that military members accrue 30 days of leave per year. For those members, rather than staying proceedings entirely, courts can work with members by permitting telephonic appearance, or scheduling proceedings around the member’s mid-tour leave.

Notably, if the request for a stay is denied, the member cannot then invoke the protections in section 201 to set aside the default judgment. 50 U.S. Code § 3932(d).

Protection from Default Judgments

The other significant family law SCRA protection for a military member is the right to set aside a default judgment against her in a civil proceeding, including child custody. 50 U.S. Code § 3931(a).

In theory, prior to obtaining a default judgment in a civil proceeding, the plaintiff is required to submit an affidavit stating whether or not the other party is in the military, or whether he is unable to ascertain such status. 50 U.S. Code § 3931(b). In reality, such affidavits are rare, and often impracticable. When a party files a motion, a court may grant it by default when the time to respond has expired, even without a request for default by the moving party.

Although in a family law case, the moving party would almost certainly know the other party’s military status, the military has an official Servicemembers Civil Relief Web Site, from the Defense Manpower Data Center (DMDC) where you can look up whether a person is on active duty, assuming you know the person’s full name and either SSN or date of birth.

Unless the affidavit states that the defendant is not in the military, the court must appoint an attorney to represent him/her before entering default. The responsibility of the court-appointed attorney is to ascertain whether the defendant is in the military and, if so, typically to request a stay of proceedings on the member’s behalf.

Should a default enter, the SCRA provides that the court shall reopen the judgment and allow the member to defend his/her position when:

  1. The judgment was entered during the military service or within 60 days thereafter,
  2. The member's ability to defend the case was materially affected by the military service,
  3. The service member has a meritorious or legal defense, and
  4. The application to reopen is made during the military service, or within 90 days after it ended.

For purposes of this section, “military service” means the member’s career, not simply the service which may have prevented the member from appearing. 50 U.S. Code § 3911(2). In theory, this means the member could wait until ETS or retirement, then seek to set aside a judgment entered years previously. In reality, I suspect a judge would view such an application skeptically, to say the least.