The Servicemembers Civil Relief Act (SCRA) is a federal statute that was signed into law on December 19, 2003. It provides certain protections to members of the military and active-duty National Guard and Reserve personnel involved in court proceedings. Some of the SCRA protections have a direct impact on family law matters. The provisions of SCRA most likely to affect family law proceedings are discussed below.
The SCRA requires a civil court or an administrative agency to enter an order delaying legal proceedings for at least ninety days when the defendant is in the military service, and the defendant's military duties negatively impacts that person's ability to prepare for the legal proceeding. Additionally, the court or agency must believe that the defendant may have a valid defense that cannot be presented without the defendant's presence, or the defendant's attorney must be unable to contact the service member defendant.
The SCRA also allows a defendant service member to request a ninety day delay in civil or administative legal proceedings. The service member must make this request by submitting two documents: (1) a letter or other communication that states how the service member's current military duties negatively impact the service member's ability to appear and prepare for the proceeding, and (2) a letter or communication from the service member's commanding officer that states that the service member's current military duties preclude participation in a court proceeding and that the service member is not authorized to take military leave at the time.
Most family law proceedings are civil legal matters. The delay provisions in SCRA therefore apply, and may be used by a member of the military or an active-duty National Guard or Reserve member to delay many family law proceedings for at least ninety days. Additional delays can also be requested by the service member.
The provisions of SCRA also impact a Decree of Dissolution of Marriage that is entered by default. A Decree may be entered by default when the Respondent is served, but does not enter an appearance in the dissolution matter. Before the Court can enter a default Decree of Dissolution of Marriage, it must first determine whether the Respondent is in the military service. If the court determines that the Respondent is in fact a member of the military, the court must appoint an attorney for the Respondent before the default Decree of Dissolution of Marriage may be entered. If the court cannot determine whether the Respondent is in the military, the court will require the person asking for the Decree of Dissolution of Marriage to be entered by default to post a bond to indemnify the Respondent if the court believes the Respondent may have a defense that requires the Respondent's presence, or if the attorney appointed to represent Respondent's interests cannot contact the service member. In this situation, the bond will be required before the court will enter a default Decree of Dissolution of Marriage.
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