For Active Military Service Members
For Active Military Service Members
The Servicemembers Civil Relief Act (SCRA) allows members of the U.S. military to suspend or postpone some civil legal responsibilities while on active duty. The purpose of the SCRA is to allow servicemembers to devote their entire energy to the defense needs of the Nation and to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service. (50 U.S.C. App. § 502.)
WARNING TO OPPOSING PARTIES!
If you have actual notice that the other party is in or may be in the U.S. Military, you must include an affidavit as to your knowledge of his or her status with the U.S. Military before requesting a default. If you provide a false affidavit, you may be fined, imprisoned, or both. This penalty applies in both civil and child custody matters.
Servicemembers Covered Under the SCRA
Servicemembers who are covered by the SCRA generally include (50 U.S.C. App. § 511):
- Members of the Army, Navy, Air Force, Marine Corps, and Coast Guard who are on active duty;
- Members of the National Guard who are called to active duty for over thirty consecutive days to respond to a national emergency; and
- Commissioned members of the Public Health Service and the National Oceanographic and Atmospheric Administration.
If Your Military Service Prevents You From Participating In A Case
A servicemember who is served with a complaint or a motion in a family law matter can ask the court to "stay" the proceedings, or in other words, postpone the case. The servicemember must show that the military service materially affects his or her ability to proceed in the case. If granted, the judge may stay the proceedings for no less than 90 days.
To ask the court to stay a family court matter due to active military service, take the following steps:
Fill out a Motion for Stay of Proceedings
A "motion" is your written request to the judge to enter certain orders. The Motion for Stay of Proceedings must explain how your military service materially affects your ability to participate in the case. To be considered, your motion must include the following:
- Facts stating how your military duty materially affects your ability to appear;
- The date when you will be available to appear;
- A letter or other communication from your commanding officer stating that your current military duty prevents your appearance and that military leave is not authorized.
The above information must be included in or attached to your motion. Complete BOTH of the following documents to ask the judge for a stay:
File the Motion
After you have completed the two documents above, you must file them with the court. You can file the papers in person, by mail, or online. Visit Filing Documents with the Court to learn how to have your papers filed.
If you have not yet filed any papers in the case, there will be an initial filing fee charged by the Clerk of Court to file your papers. This amount is usually just over $200 (the exact fee depends on the type of case that was filed). If you have filed legal papers in the same case before, there will be a $25 filing fee to file this motion. If you cannot afford to pay the required filing fee, visit Filing Fees and Waivers to find out how to ask the court to waive the filing fee.
Ask for an Emergency Hearing (If Needed)
When you file your motion, the Clerk of Court will schedule a court date for you. The court date may not be for a few months. If you need the judge to hear your motion sooner than scheduled (for example, because you will be deployed before the court date), you can ask the judge for an emergency hearing, also called an "Order Shortening Time." It will be up to the judge whether to grant you a quicker hearing.
To ask for an emergency hearing, download the following packet, follow the instructions provided, and submit the required papers to the court.
Serve the Other Party
Your next step is to serve the other party with a copy of the documents you filed so the other person knows what you are asking, when the judge will hear the matter, and that a response should be filed. It is up to YOU to make sure the other party is served; the court does not serve the papers for you! Be sure to serve the court-filed forms that include the filing date and the hearing date!
- If the judge granted your Order Shortening Time, someone else will have to personally serve the other person with a copy of all the documents you filed. Whoever serves the other person must complete an Affidavit of Service which states when, where, and what documents were served. You must file the Affidavit of Service with the court before your hearing.
Affidavit of Service (pdf) Affidavit of Service (pdf fillable)
- If your hearing is staying on the originally scheduled date, you must serve a copy of all the documents either by regular mail or through the court's e-filing system. Complete a Certificate of Service after you have served the documents so the judge knows when, how, and where the documents were served. File the Certificate of Service with the court.
Go to the Hearing
It is a good idea to review some tips on how to Represent Yourself in Court before you go to the hearing. You may also want to watch some videos that the family court judges prepared to help you understand the court process. You can view helpful videos from the judges by clicking here.
If you cannot attend the hearing in person, you can ask to have the court call you at the time of your hearing so you can participate by phone. The following form must be completed and filed to request a telephonic hearing:
After the Hearing
If the judge grants you a stay, it is important to remember that the stay will only last for as long as the judge ordered. The stay does not stop the legal proceedings altogether, it just temporarily delays the case from proceeding. You will be expected to fully participate in your case after the stay expires.
If your military service still prevents you from participating in your case after the stay expires, you must apply to the court for an additional stay.
Resources for Servicemembers
The SCRA provides many more protections for active servicemembers. A general list of legal areas covered by the SCRA can be found on the Civil Law Self-Help Center's website.
For more information on the SCRA and how to obtain free legal assistance, visit Military.Com Legal Assistance.