The Servicemembers Civil Relief Act (SCRA) is a federal law that protects active duty service members from legal entanglements while in active duty service. The protections under SCRA range from reducing interest rates while on active duty to limiting a landlord’s ability to terminate a service member’s lease.  

One important rule of SCRA is that it limits the power of default judgements. The law protects military members from being brought to court while they are occupied with military deployment. This is highly relevant when it comes to divorce or child custody cases. This article will first look at the relevant provisions of the SCRA and then apply the law to see how it will help servicemembers in certain precarious scenarios.

Protecting Servicemembers from Default Judgments

As the SCRA states expressly in its purpose (50 U.S.C. § 502), the law’s intention is to “strengthen, and expedite the national defense through protection extended by this act to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the nation.” Any person that has been a party to a civil lawsuit can attest that the pending proceedings are distracting at best. Congress reasonably believed that protecting soldiers fighting for us abroad from unnecessary legal stresses improves national defense.

Besides providing protection against most civil debts (including special protection for mortgages, leases, and automobiles), the SCRA’s broad scope includes the civil lawsuits that accompany most divorce legal actions. For example, section 521 offers protections for servicemembers against default judgments that apply “to any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance.”

It will be worth our while to spend a little time with section 521, as the protection granted to servicemembers get a little technical. As stated above, section 521 of the SCRA provides a remedy for a servicemember that has had a default judgment issued against him or her while serving in active combat. In reference to divorce, this applies to the initial filing of the divorce and any ancillary action that might arise from the such as adjustments to spousal support or child support.

In section 521(b)(1), the law requires the plaintiff to file an affidavit if the judge has reason to suspect the absent defendant is in active service. Unfortunately, courts do not always discover in time the fact that an absent defendant is a servicemember serving actively abroad. Then, as would happen to any other defendant, courts most often enter a default judgment against an absent party.

You can imagine how completely unfair this can be. Consider a scenario where a staff sergeant has been divorced for years and his or her spouse sues the servicemember for increased child support due to rising medical costs while the staff sergeant is serving in a combat theater seven thousand miles away. Given the complexities of some missions, it is entirely reasonable that the staff sergeant would not even hear of the suit until months after the default judgment had already entered the court system. It would be exceedingly difficult on the psyches of our servicemembers if there were no recourse for them in such a scenario.

The remedy to such a hypothetical is found in Section 521(g) which grants authority to a court to vacate or set aside a default judgment if it is “entered in an action covered by this section against a servicemember during the servicemember’s period of military service (or within 60 days after termination of or release from such military service).” Not only are servicemembers protected from default judgments while abroad in active service, but they are protected from default judgments for the 60-day window immediately after the end of active service.

Now it gets a little more tricky. Section 521(g)(2) states that if a court enters a default judgment servicemember in the timeframe discussed above, the servicemember has 90 days from the end of active duty to bring the violation of the SCRA to the court’s attention. Such a formal notice to the court will require the servicemember to elucidate two necessary findings: 1. that active duty service “materially affected” the servicemember’s ability to bring a defense (this element usually isn’t too difficult to meet) and 2. that the servicemember has a meritorious legal defense to the relevant judgment. Obviously, that latter element will be entirely fact-specific to the claims at hand.

Elaborating on our hypothetical will help make this concept clearer. Let’s say our staff sergeant was on active duty through January 1st, 2019. On February 1st, 2019, the court issued a default judgement against the staff sergeant after the failed appearance regarding the child support suit. Because it is within 60 days of the staff sergeant’s end of active duty, the protections outlined in SCRA apply. The staff sergeant would then have ninety days from the end of active duty — in this case, April 1st, 2019 — to file a motion with the court requesting relief under the act.

Importance of a 60-Day Buffer from Default Judgments

How is an active duty servicemember to defend him or herself in court against a demand for an increased contribution to child support while operating in patrols seven thousand miles away? It is as impossible as it is unfair for a servicemember to present a defense to a civil legal dispute while in active service. 

That doesn’t explain why default judgments entered an additional 60 days after the end of active duty may be reopened, though. A recent discussion with a first sergeant explains the purpose of this buffer. 

The military does not throw its servicemembers back into civilian life immediately upon the end of a combat tour. The military has learned that a cool–down period of transition is necessary for the service member’s health. 

SCRA provides an active duty military member protection from certain legal issues. The reasoning behind these protections is to allow a service member the time to focus on national defense. A Service member preoccupied with legal issues or unable to defend themselves in person, could impair their ability to defend our nation.  

About the Author
Stacy Rocheleau, Esq., has practiced divorce law for 18 years. Her firm, Right Lawyers, helps clients with uncontested divorces, legal separations, and contested divorces. Among her accolades, Ms. Rocheleau was elected the best divorce attorney in her home State of Nevada for 2017 & 2018.