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What’s the Servicemembers Civil Relief Act (SCRA)?

The Servicemembers Civil Relief Act is a federal law that is intended to support service members (SMs) while they are on active duty/deployed. In part, the law exists to prevent default judgments from being entered against a SM who is overseas and/or unable to manage his or her responsibilities related to the lawsuit because of his or her service. In some cases, it also offers general protections that include terminating a residential or vehicle lease early and limiting interest on bank loans, finance companies and credit cards to 6%. The Act also gives SMs the opportunity to seek a 90 day stay from the court. A stay essentially “freezes” a case so the SM can have additional time to concentrate on his or her military duties before addressing the lawsuit. The 90 day stay isn’t automatic. The SM must file a request for it. If applicable to the SM, the request may be for a stay that is longer than 90 days. What happens during a stay? Generally, nothing happens during a stay but it is possible the court could address “administrative” matters, such as checking the status of the SM’s ongoing duties to determine whether the stay should remain in effect after 90 days, for example. Because the SCRA is a federal law, every state must comply with it. If the SM is served with a lawsuit but is not given the opportunity to exercise his or her right to seek a stay, the consequences are serious. A judge’s ruling is at risk of being set aside (legally erased) later if a stay should have been given but was not.

How Do SCRA Cases Get Started?

The SCRA is triggered when a lawsuit is filed against a SM. In family law cases, this includes child custody or support, alimony and/or equitable distribution (marital property division). Courts in Pi County usually appoint a volunteer attorney to discuss the SCRA rights with the SM to determine whether he or she meets the legal standard for seeking the 90 day stay. If so, the attorney helps the SM file the request for the 90 day stay with the court. The attorney is only appointed to make sure the SCRA rights are protected, not to represent the SM in the case itself unless the SM chooses to hires that attorney for the case.

Does the SM Qualify to Seek a 90 Day Stay?

If the SM’s military duties materially (significantly) affect his or her right to defend the lawsuit because the SM is unable to appear in court, and he or she has no authorized leave, the SM might qualify to ask for the 90 day stay. This right is extended to those who are not only on active duty or deployed, but for those who cannot be in court due to sickness, wounds, leave or other lawful purpose. When a SM requests the stay, the court expects him or her to provide alternate times of availability.

Do the SM’s Duties Materially Affect His or Her Legal Rights?

With the appointed attorney, the SM seeking a 90 day stay must explain how his or her military duties materially affect his or her legal rights. Perhaps the SM is overseas in the field for the next 73 days and has no leave. In an alimony or equitable distribution case (dividing marital property), the SM might not have access to the records that are necessary for his or her attorney to move forward in the case. Is the SM able to reasonably communicate with his or her attorney by phone, or even e-mail? There are as many scenarios as there are SMs, but the goal is for the SM to meet the opposing party on equal footing to the extent possible. SMs shouldn’t be penalized for their military obligations. 

Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. www.AmyEdwardsFamilyLaw.com © 2017.

 

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