The Servicemembers’ Civil Relief Act (SCRA), formerly called the Soliders’ and Sailors’ Civil Relief Act, was implemented to protect military servicemembers from being sued while on active duty, for up to one year after they are released from active duty.
The law requires that before any lawsuit may be filed against a servicemember, a plaintiff must provide proof that the servicemember is not on active duty before adverse action is taken. Thus, if a servicemember has not made an appearance in a case, no judgment may be entered until the plaintiff files an affidavit stating whether the defendant is in the military. The law defines a “judgment” as “any judgment, decree, order, or ruling, final or temporary.” 50 U.S.C. app. Sec. 511(9). SCRA states that: “[T]he court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit-
(A) Stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or
(B) If the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.”
If the plaintiff’s affidavit establishes that the defendant is not in the military, the court may proceed with the case. The court, however, may require that the plaintiff post a bond to compensate a defendant later allowed to set aside a judgment because he or she actually was on active duty.
If plaintiff’s affidavit before the court shows that a defendant, who has not made an appearance in the case, is on active duty, “the court may not enter judgment until after the court appoints an attorney to represent the defendant.” This means that the court cannot enter any order, temporary or permanent, before appointing an attorney when a defendant servicemember has not made an appearance.
After an attorney has been appointed to represent the servicemember who has not made an appearance, the court must stay the case for at least 90 days either “upon motion by the appointed counsel, or on the court’s own motion, if the court determines that:
(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, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.”
If you are in the military and are facing any type of non-criminal judicial or administrative proceeding, including divorce, child custody, child support, and / or claims of domestic violence, and would like to discuss your rights under SCRA, contact Adkins Law. If you have not appeared in the case, you may have an attorney appointed to represent you, or may have the case stayed for at least 90 days.
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