November 01, 2018

Protection Against Default Judgment

A Court Order Likely Can’t Be Entered Against You in Your Absence

I have been deployed overseas and, according to my brother, my ex-wife has filed for full custody of my children. There is obviously no way I can get back for the hearing. Does the SCRA help me here?

I hear a court has entered an order against me for being behind in my mortgage payment. Should the SCRA have prevented this?

I just found out that a default judgment was entered against me a couple of months ago. Can I still challenge it?

I am going to be deployed into a combat zone and suspect that my child’s mother might file to change my child support while I’m away. I am concerned that, due to my deployment, I will not find out about the lawsuit until it is too late for me to do anything. Am I protected in any way?

What happens if both a military member and dependent spouse are sued by the same plaintiff, such as a landlord, and the dependent spouse is available to appear in court, but the military member is deployed?

I have been deployed overseas and, according to my brother, my ex-wife has filed for full custody of my children. There is obviously no way I can get back for the hearing. Does the SCRA help me here?

It could —at least temporarily. Upon motion by an attorney or the Court itself, the SCRA provides for a stay of civil court proceedings for a minimum of 90 days. Likewise, the SCRA protects servicemembers from default judgments. “Default judgment” is 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 you if you do not appear in court because of your military service obligations. The SCRA also allows you to obtain a delay in court and administrative hearings.

If you are aware of a legal action filed against you or a hearing scheduled, you should make an appointment with a military legal assistance attorney or your private attorney, if any, right away to discuss your options. Do not disregard legal or court papers just because you may be covered by the SCRA—talk to a lawyer to find out 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 may also have some additional rights under state law.

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I hear a court has entered an order against me for being behind in my mortgage payment. Should the SCRA have prevented this?

Yes, 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 have already 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 that order is automatically void, but it does mean that if you challenge the judgment, a court will likely throw it out.

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I just found out that a default judgment was entered against me a couple of months ago. Can I still challenge it?

Yes—so long as you were on active duty within the last ninety days. Once you are released from active duty, you have ninety days to ask a court to undue a default judgment that was entered against you while you 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 may provide you with additional rights or time in which to assert them.

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I am going to be deployed into a combat zone and suspect that my child’s mother might file to change my child support while I’m away. I am concerned that, due to my deployment, I will not find out about the lawsuit until it is too late for me to do anything. Am I protected in any way?

Yes. If anyone files a lawsuit against you and you do not respond or appear in the case, the person filing the lawsuit is obligated to file an affidavit stating whether or not you are serving in the military. If the affidavit states that you are in the military, the court cannot enter a judgment against you unless and until a lawyer is appointed by the court to represent your interests. Following appointment of a lawyer for you in your absence, the court will then postpone the case for at least 90 days if the lawyer cannot reach you (e.g., if you are in a combat zone and unreachable) and/or if your presence is necessary to allow you and your lawyer to present your defense. Having said all that, most states employ an “income sharing” model for calculating child support.  If your income goes up while you are in active military service, so too should your child support, especially since the government is paying you a Basic Allowance for Housing at the “with dependents” rate while you are deployed; and many state courts also consider it a change of circumstances if your income is now tax free. You should, for the benefit of your child, report any substantial increase in your income to the court or the agency enforcing child support obligations so that your child support may be appropriately recomputed. If you have questions about how best to handle this situation, seek help from a military legal assistance attorney or private counsel.

If a lawsuit is filed against you by someone who may not know about your military service, the affidavit may say that your military status is unknown. In that case, it is possible that the court may go forward without appointing you an attorney and may enter a default judgment as it would for any non-military 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 that anyone can use to figure out whether a person is serving in the military. So if you are, in fact, serving in the military, anyone filing a lawsuit against you should have no excuse for filing an affidavit stating that your military status is unknown, since a quick search of this website should turn up your information.  Courts should insist that any affidavit of military service be supported by a DMDC certificate if the creditor has enough personal information to seek such a certificate.

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What happens if both a military member and dependent spouse are sued by the same plaintiff, such as a landlord, and the dependent spouse is available to appear in court, but the military member is deployed?

There are several possible options available to the dependent spouse and military member under this scenario. Each option and the associated risks are very fact specific-involving an interplay of the Servicemembers Civil Relief Act with state law. Bottom line-it is absolutely critical that the military couple obtain immediate assistance from a military legal assistance attorney to determine the proper course of action.

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