November 01, 2018

Protection from Judgments, Attachments, and Liens

You May Be Protected from Execution of Judgments, Attachments, and Garnishments

Does the SCRA prevent ANY court judgment from being entered against me at ANY time while I am serving in the military?

My wife filed for divorce while I was stationed overseas. I appeared in the case and agreed to the divorce. The court has now entered an order requiring me to turn over some of our personal property that I have in my possession. It is impossible for me to get these items to her until I return from overseas. What do I do?

I was not able to pay on one of my credit cards, and I was sued. I never received notice of the lawsuit or judgment, but now I’ve been served with an order garnishing my pay to cover the debt. How do I stop the garnishment before I lose my pay?

 

Does the SCRA prevent ANY court judgment from being entered against me at ANY time while I am serving in the military?

No. If a lawsuit is filed against you, 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) a default judgment is entered against you while you are on active duty and b) your military service prevents you 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.

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My wife filed for divorce while I was stationed overseas. I appeared in the case and agreed to the divorce. The court has now entered an order requiring me to turn over some of our personal property that I have in my possession. It is impossible for me to get these items to her until I return from overseas. What do I do?

If the conditions of your military service make it difficult or impossible to comply with a court order, you may request that the court hold off (or “stay”) enforcement of the order until you are able to comply. This may be particularly helpful if an order is entered against you that requires you to pay a financial obligation, or that imposes a wage garnishment. If your military service makes complying with these orders difficult, you may ask for a stay. Your military legal assistance attorney or other counsel can assist you with a request for a stay. You must promptly respond to court orders even if you can’t comply with them. You don’t want the court to find you in contempt.

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I was not able to pay on one of my credit cards, and I was sued. I never received notice of the lawsuit or judgment, but now I’ve been served with an order garnishing my pay to cover the debt. How do I stop the garnishment before I lose my pay?

If  the default judgment order was entered in violation of the SCRA, you should challenge the validity of the judgment (i.e., seek to “reopen” the default judgment). Also, you should request an immediate stay of the garnishment (for commercial debts, this is known as an “involuntary allotment”) until the court can make a determination of 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, however, that this applies only to garnishments resulting from court orders. You should get a notice from the Defense Finance Accounting Service (DFAS) before your pay is involuntarily allotted to repay a commercial debt. That is the time to tell DFAS that the creditor didn’t honor your SCRA rights. If your pay has been garnished by the military to pay your debt to the government, this collection is not subject to the SCRA; but you have the right under military regulations to request waiver, cancellation, or remission of the debt.

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