Servicemembers Civil Relief Act
Legal actions where one party is a member of the U.S. Armed Forces can
be challenging as they typically implicate specific procedural requirements
under federal law. As a result, virtually all civil legal proceedings—including
family law cases—naming a military servicemember as a defendant
or other responsive party must comply with the federal protections afforded by the
Servicemembers Civil Relief Act (SCRA) under Title 50 of the United States Code.
If you are going through a divorce or facing another family law matter
involving a military servicemember, you stand to benefit from the experienced
legal counsel of an Orange County attorney from Moshtael Family law. With
more than 130 years of combined legal experience, our legal team has successfully
handled various family law issues, including those concerning the provisions
of the SCRA.
To learn more about your legal rights and options, please call our office
General Protections Under the SCRA
Ordinarily, state law governs matters connected with divorce, marriage,
and domestic relations. However, when a military servicemember is involved,
the federal SCRA comes into play. Under the SCRA, members of the U.S.
Armed Forces enjoy certain legal and procedural protections when it comes
to legal action taken against them during times of deployment or similar
Among the SCRA’s protections is a requirement for the plaintiff to file an
affidavit with the court concerning the nature and extent of the defendant’s
military service, or whether the plaintiff can confirm or deny the defendant’s
military service. Importantly, it is a crime to file a false affidavit,
punishable by criminal fines, and even incarceration in a federal prison.
Additionally, the SCRA provides servicemembers with the following protections:
Protection against default judgments: When the defendant or other responsive party fails to appear in court to
contest the allegations of the plaintiff’s complaint, the court
may issue a default judgment in favor of the plaintiff. However, the SCRA
provides servicemembers with procedural rights to prevent a court from
rendering a default judgment against them due to absence resulting from
military service. 50 USCS § 3901.
Appointed counsel for appearances: The SCRA provides military servicemembers with the right to have counsel
appointed to represent them during legal proceedings. A court may not
proceed to judgment in the absence of an attorney representing the servicemember.
If appointed counsel cannot locate their client, their actions cannot
legally bind the absent servicemember. 50 USCS § 3901(b)(2).
Automatic stay of legal proceedings: If a plaintiff institutes legal action against a defendant who is in military
service, the court cannot advance legal proceedings for at least 90 days
if the defendant cannot be located and their presence is deemed necessary
to effect a defense. 50 USCS § 3932(b).
Additional stay of legal proceedings: A court may stay legal proceedings upon request by the defendant or their
attorney supported by letter explaining how the defendant’s military
duty materially interferes with their ability to appear, or a letter from
the defendant’s commanding officer that they are not authorized
to take military leave to appear for the proceedings. 50 USCS § 3932(d).
Temporary custody orders: A court may not modify the terms of a
child custody order based solely on the servicemember’s absence due to military
deployment. The court may issue a temporary order regarding custody of
the servicemember’s child during a period of deployment. 50 USCS
Get Effective Legal Counsel at Moshtael Family Law
Although military service can be difficult for families, one’s decision
to serve our country should not be punished in court. At Moshtael Family
Law, our team of attorneys has decades of valuable experience with a broad
range of family law disputes, including matters where an active duty member
of the military is involved. We are committed to finding a just and fair
resolution to your family law dispute, taking in the impact of military
service into account.
Please call Moshtael Family Law at or
contact our office online
today to arrange for an initial consultation about your case. We're proud
to offer military discounts.