In a perfect world, no article would ever begin with an apology. However, having a commercial and personal injury litigator (me) write an article for family law practitioners (you) is the rough equivalent of having a carpenter give surgical tips to a neurosurgeon. Accordingly, as an attorney with nearly four decades of military service supplementing nearly five decades of the practice of law but recognizing my limitations, I offer this article to my colleagues in the trenches of family law litigation as an overview of the Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901–4043 (SCRA) and discuss several SCRA provisions that will frequently impact the practice of family law. Citations throughout this article will refer to only the section number, but all refer to Title 50 of the U.S. Code, where the SCRA is now codified. Previously, the SCRA and its predecessor statute were indexed in 50 U.S. Code Appendix but were moved to 50 U.S. Code several years ago. For a more detailed analysis, see the must-have book The Military Divorce Handbook: A Practical Guide to Representing Military Personnel and Their Families (3d ed. 2019) by Mark E. Sullivan, Colonel, U.S. Army Reserve (retired) of Raleigh, North Carolina.
The Purpose of the SCRA
The SCRA provides protections to servicemembers involving certain civil obligations while they are on active duty (and regarding mortgage interest rates and nonjudicial foreclosure protections for a period of up to 12 months after release from active duty). The theory behind these protections is the need to keep servicemembers from being distracted by civil legal matters back home, so they can concentrate instead on their military duties.
Who Is Protected by the SCRA?
The Act protects all members of the Army, Navy, Air Force (including the Space Force), Marine Corps, and Coast Guard when they are on active duty as defined by 10 U.S.C. § 101(d)(1). For members of the Army National Guard and Air National Guard, the members are protected by the SCRA when ordered to duty under 32 U.S.C. 502(f) for a period of more than 30 consecutive days for purposes of responding to a national emergency and supported by federal funds. Additionally, a service member who is a commissioned officer on active service with the Public Health Service or the National Oceanic and Atmospheric Administration is protected by the SCRA.
In addition, certain benefits are extended to dependents of persons in the military service, persons who have guaranteed or are secondarily liable on obligations of service personnel (§ 3913), and U.S. citizens serving with the armed forces of U.S. allies during the time of war (§ 514).
Section 3959 extends the protections of Title III of the Act (protections against nonjudicial repossessions, foreclosures, sales of stored goods or automobiles, and termination of premises, vehicle, and cellphone leases other than in strict compliance with the Act) to a dependent of a service member upon application to a court. Dependents of service members, including the spouse and children under 18 years of age or up to age 23 if enrolled full-time in college, individuals for whom the servicemember pays half or more of their expenses (which could include aging parents), and children who became disabled before age 18 are specifically covered by 50 U.S.C. § 3951 from nonjudicial evictions. “Dependents” are defined in 50 U.S.C. § 3911. The protections are automatic for the active-duty service members (including Reservists and Guardsman called to full-time active duty), but, for the extension of the protections to dependents, application must be made to a court.
Applicability of the SCRA—Civil Courts and Agencies Only
The SCRA applies not only to all civil courts (local, state, and federal), but also to all administrative agencies, whether of record or not. Of great importance to family law practitioners is that this new, greatly expanded definition of “court” includes all hearing officers and magistrates who may be appointed in family law matters to make initial settings of child support or initial awards of child custody. Although the predecessor statute (the Soldiers’ and Sailors’ Civil Relief Act) clearly applied to all courts, the definition adopted in the 2003 reenactment and update of the older act is much broader and extends to bodies such as school boards, city councils, county boards, and commissions.
The SCRA has no applicability to criminal proceedings. The SCRA does not apply to civilian contractors deployed overseas or members of Reserve components or National Guard and Air National Guard not on active duty (e.g., drill weekends or inactive duty for training).
When the SCRA Applies
The SCRA applies when a covered servicemember is on active duty, regardless of where that active duty is being performed. It applies to an active-duty servicemember serving at a base, fort, or post in the continental United States, just as it applies to an active-duty service member who is deployed overseas in a combat zone.
A popular misconception among many creditors is that the SCRA only protects servicemembers when they are deployed overseas. That incorrect reading of the law has resulted in countless claims against mortgage companies and auto finance companies whose counsel did not or will not read the plain language of the SCRA.
The period of military service begins on the date of entry on active duty and ends on the date of discharge or death while in the active service (§ 3911(3)). Reserve component members and draftees may seek relief under Titles I, II, and III of the Act as soon as they receive orders to report for active duty or induction (§ 3917), which may be weeks or months before they report for active duty.
Protection against Default Judgments
Some of the major protections of the Act (such as protection against nonjudicial repossessions of cars and other property (§ 3952) and nonjudicial foreclosure, seizure, and sale of property subject to a mortgage or trust deed (§ 3953)) apply only to pre-service obligations. However, regardless of whether the obligation was incurred during or before a period of active duty, a valid judgment by default cannot be rendered unless the provisions of § 3931 are strictly followed by the moving party.
In every proceeding (any civil action or proceeding, specifically including child custody proceedings) in which the defendant does not make an appearance, the moving party must file an affidavit stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; if neither of those statements can be made, an affidavit stating that the “plaintiff is unable to determine whether or not the defendant is in military service” must be filed. The inclusion of the phrase “including child custody proceedings” in both §§ 3931 and 3932 was unnecessary because the phrase “any civil action or proceeding” was sufficiently inclusive: “any” means all. In the same regard, the amendments adding §§ 3938 and 3938(a) were, in this author’s opinion, unnecessary. In my experience, no family court judge has ever used a single factor in determining the best interest of a child in a custody proceeding.
The required affidavit must state sufficient facts to support the affidavit. If the plaintiff is unable to determine whether the defendant is in military service, the court, before approving judgment, may require the plaintiff to post a bond as security for any damage the defendant may suffer if the judgment is later set aside in whole or in part. Anyone having a name, SSAN, and/or date of birth of a service member (or any two of those data points) can visit https://scra.dmdc.osd.mil, a free website operated by the Defense Manpower Data Center of the Department of Defense, and set up a free account to ascertain the military status of an individual since September 30, 1985. There is no need to use the commercial services that will pop up on Google.
If it appears that the defendant is in military service, the court may not enter judgment until after the court appoints an attorney to represent the defendant. Caution! The definition of “judgment” in § 3911(9) is “any judgment, decree, order, or ruling, final or temporary.” When I practiced family law in the early days of my career, we always included an order for the court to execute ex parte freezing the community assets and occasionally making an initial determination of temporary custody for the minor children of the marriage. I have now concluded that any such order is likely a violation of the SCRA’s definition of “judgment.”
When it appears the defendant is in military service, either on application by the attorney appointed to represent the absent servicemember or sua sponte, the court shall grant a stay of the proceedings for a minimum of 90 days if the court determines two factors: (1) there may be a defense to the action and a defense cannot be presented without the presence of the defendant, or (2) after due diligence, the appointed counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists. The appointed attorney, therefore, must do something to try and locate the servicemember for whom they are appointed counsel. Merely sending a letter to the last known address is not, in my opinion, sufficient representation of the absent servicemember. Interrogatories or requests for production of documents to the moving party may reveal other ways to find the defendant or contact him or her.
It is a federal misdemeanor to knowingly file a false affidavit of military service.
If a servicemember discovers a default judgment entered during their period of service or within 60 days after their release from active duty, a court entering the judgment shall upon application by or on behalf of the servicemember, reopen the judgment for the purpose of allowing the service member to defend the action if (1) the servicemember was materially affected by reason of military service in making a defense to the action, and (2) the servicemember has a meritorious or legal defense to the action or some part of it. Any such application to set aside a default judgment must be filed not later than 90 days after the date of termination or release from military service.
Section 3931 is a vitally important protection for servicemembers. Whether you represent the plaintiff or the defendant, it is essential that you understand what must be done to obtain a valid default judgment against a service member, or how to attack one that was not rendered in strict conformity with the requirements of § 3931. After over 20 continuous years of war and multiple deployments for virtually every active-duty, Reserve, and Guard service member, you would think courts and attorneys would have gained proficiency in obtaining or attacking default judgments involving servicemembers; but I learn anew every day that “there’s always someone who didn’t get the word.”
Requesting a Stay in the Proceedings
Second only to the protection against default judgments provided in § 3931, the ability to obtain a continuance under § 3932 is of vital importance to defendants who have been served with process in a civil proceeding but who thereafter cannot attend a court hearing because of military duties. For those who have sought continuances based on “he’s gone to war” claims under the predecessor statute (the Soldiers’ and Sailors’ Civil Relief Act—“the Old Act”), you learned that whether to grant a continuance or not was within the broad discretion of the trial court. Denials of the requests were rarely appealed, and, even then, the rulings of the trial courts were almost never reversed. The rules changed with the adoption of the SCRA in December 2003.
If the application for a continuance in a court hearing date complies with the provisions of §3931, the court on its own motion may and shall, upon application by the servicemember, grant a stay for at least 90 days. Whether to extend the stay beyond the first 90 days is within the broad discretion of the court (the same situation as existed under the Old Act.
If the servicemember follows the language of § 3932, he or she should prevail. However, if the application does not comply with § 3932, you may find that courts are beginning to require strict compliance with the statute to entitle the service member to the stay.
An application for a stay of the proceedings is made by a letter or other communication from the servicemember to the court requesting a stay plus a letter or other communication from the servicemember’s commanding officer corroborating the service member’s application. The SCRA is silent about the form these two communications must take. In theory, they could be verbal; but that is not recommended. The communications should be in writing at a minimum, so faxed or emailed communications with the court comply with the statute.
The communication with the court from the servicemember must state the manner in which current military duty requirements materially affect the service member’s ability to appear and stating a date when the service member will be available to appear. Both aspects of the statutory requirement must be fulfilled in the service member’s communication with the court. It is not sufficient to say, “I’m on active duty and too busy to come to court.” It is not necessary that the servicemember be deployed overseas to qualify for the relief under § 3932. The service member could well be in a school or training course that did not allow leave during the course, or they could be in the middle of an exercise during which no leave would be granted.
The communication from the service member’s commanding officer must only state that the service member’s current military duty prevents appearance and that military leave is not authorized for the service member at the time of the letter (or other communication). It is highly recommended that counsel for the service member draft both the service member’s application for a stay and the letter from the commanding officer advising that the service member’s current military duty prevents appearance and that military leave is not authorized for the service member at the time of the letter. Do not leave something this important to a young, enlisted soldier who may not be able to express properly how military tasks materially affect his or her ability to appear in court. Only the most remote deployments are without email (although being embarked in a submarine on patrol might well be a situation where no communication was possible), so it should be possible to speak with or email the servicemember to get the information necessary to draft a proper letter to the court.
An additional stay beyond the first 90 days can be requested either at the initial communication with the court or thereafter. The same information as discussed above must be included in any application to extend the stay beyond 90 days. If the court declines to extend the stay after the first 90 days, an attorney must be appointed to represent the absent service member (see 50 U.S.C. § 3932(d)(2)).
Additional Aspects of the SCRA
It is not possible in the size limitations of this article to cover all the aspects of the SCRA and how it protects service members. The sections above are specific to a family law practice and the ones practitioners in that area will most often encounter. Make sure you are aware of these aspects of the SCRA as well:
Statutes of limitation. § 3936 provides that statutes of limitation run neither in favor of nor against a servicemember as long as they are on active duty.
Evictions. Neither servicemembers nor their dependents can be evicted from residential premises in which the monthly rent is $4,214.28 or less (an amount that adjusted annually) without a prior court order granted only after a hearing.
Breaches of contract for purchase of real or personal property. Pre-service contracts for real or personal property by a servicemember cannot be rescinded or terminated for a breach of contract without a court order.
Mortgages. No pre-service mortgage or deed of trust can be foreclosed, nor the property seized or sold without prior issuance of a court order authorizing the foreclosure, seizure, or sale of the protected property, issued only after a hearing.
Termination of premises, auto, cellphone, and Internet services leases. Leases for premises, auto, cellphone and Internet services can be terminated without penalty for servicemembers under the terms and conditions outlined in §§ 3955 and 3956.
Storage liens. Goods or property subject to mechanics or storage liens cannot be sold without a court order granted before foreclosure or enforcement.
Private right of action for damages. § 4042 provides for a private cause of action for damages for violations of the SCRA, including exemplary damages and reasonable attorneys’ fees and costs.
The SCRA is a remarkable statute that alters the terms of conventional contracts when one of the parties to those contracts becomes or is a servicemember. The Act works exceptionally well in bilateral conflicts, but not particularly well in child custody proceedings where the overriding interest of the court is always the best interests of the child. This article is intended to encourage the reader to do additional research in the SCRA whenever litigation involves a service member, regardless of which side of the lawsuit the reader represents.