Many people have at least heard the term, “Service-members Civil Relief Act” or “SCRA”, but what most forget is that this law deals with literally thousands of issues that a service-member may face. Many folks routinely throw out the term “SCRA” when dealing with landlord/tenant issues – such as the need to break a lease early due to military necessity – but few actually know how to properly present the issue to a court in order to be granted a delay or to enforce terms in a lease. We are really only going to look at this from a divorce and child custody perspective, but it’s important to note that this legislation has a broad reach into many other areas of the law.
What is the SCRA?
The SCRA is a law that was passed in 2003 and it replaced the “Soldiers’ and Sailors’ Civil Relief Act” (SCCRA), which had been around since 1940. The SCRA was essentially drafted to update the SCCRA and it incorporates many of the judicial decisions that have been interpreted the SCCRA over the prior 60-plus years.
The SCRA was primarily signed into law to protect those on active duty, as well as Reservists and members of the National Guard. The SCRA enables service-members to devote their time and attention to the defense needs of the Nation by providing protections related to such things as rental agreements, security deposits, prepaid rent, evictions, installment contracts, credit card interest rates, automobile repossessions, mortgage interest rates, mortgage foreclosures, civil judicial proceedings (such as divorce and custody hearings), automobile leases, life insurance, health insurance and income tax payments. The SCRA is closely adhered to by the courts and, in most instances, benefits deploying service-members.
The SCRA is a “Shield”…Not a “Sword”
The best way to explain how the SCRA works is to use the sword/shield analogy. If someone is trying to litigate an issue in court to your detriment – and you cannot get into court due to your mobilization or deployment, the court will allow you to use the SCRA (as a shield) to delay the proceedings until you can properly appear – within reason – and only if all of the proper requirements have been met. What you cannot do is attempt to do something nefarious (using the SCRA as a sword) and then prohibit your spouse from coming into court for relief by claiming that you are unable to appear due to your deployment and that the case should be delayed until your return.
Let’s talk about a bit more about a mobilization situation. If you are being called up to deploy and you are the custodial parent, do not fall into the trap of believing the SCRA will assist you in delaying your case or allow you to inappropriately alter your child’s custody arrangement. Let’s also say that you have a shared custody arrangement with your ex, but now that you know you are deploying, you want this child to be in the custody of someone else. More likely than not, your ex will bring you into court to attempt to enforce the custody arrangement, and even if there isn’t one, he or she will claim that he/she is entitled to custody as the biological parent– AND he/she may also petition the court for Pendente Lite (temporary) relief that you may be obligated to pay.
If you try to stay the proceedings under the SCRA without just cause, the court will likely not grant you this delay and the case will proceed with or without you. The court will not likely delay this unresolved situation with regard to your child’s life simply because you are a service-member and you and your ex can’t get along.
How do I delay a lawsuit under the SCRA?
If you are in such a situation where someone has initiated legal action against you (or where you wish to invoke protections under the SCRA) and you cannot appear in court due to a mobilization or deployment, you definitely want to talk to a JAG Attorney or civilian attorney with knowledge about the military and SCRA - about all of the requirements that a court will need to have before it will delay the lawsuit until you can appear. This includes child custody and divorce proceedings. If you have been notified to appear in a court hearing, an initial 90-day delay can be granted upon your request. However, your request must explain how your military duties materially affect your ability to appear and specify when you will be able to appear. In addition, your commander must provide a letter detailing how your military duty prevents you from appearing. You may be able to get subsequent delays beyond the initial 90-day period. This can be very tricky and you definitely want to consult with an attorney to make sure that your request is in the proper form and contains all of the necessary requirements so that a default judgment isn’t issued against you when you fail to appear.
On top of that, folks in the Reserves and National Guard need to be on specific types of orders to be able to invoke the protections of the SCRA. Even active duty folks must meet several requirements in order to prove that your contribution to your current mission (mobilization/deployment) is so integral that you cannot be granted proper leave to attend.
How does this relate to me?
Ok, at this point, you now have a brief understanding of what the SCRA is and how it can be used to delay a case in certain instances. If you are the military spouse, you could be surprised to find out that your case can’t go to trial when you thought it would – because the other side invokes the SCRA. You may be a female service-member who is about to deploy and you may be worried your case may be heard without you. You might be a male service-member with custody of your child and hoping to use the SCRA to alter the timing of your custody case in an attempt to circumvent a custodial arrangement. Whatever the case may be, you really ought to be careful when attempting to utilize this piece of federal legislation in your state court case. This is all to say, the SCRA is a complicated law with complex requirements. It is necessary to have this topic on your radar screen. Whatever situation you may be in, this is a great topic to bring up with your attorney to make sure that your litigation strategy takes this issue into account.