Can Active Duty Servicemembers Delay Court Proceedings? Explained
Getting called to court can be a stressful experience, but this process can be more complex if one of the involved parties is an active duty service member. Military members are often called to deployment overseas and across the country, making it more challenging to show up to court proceedings.
Fortunately, military personnel are afforded certain protections under the Servicemembers Civil Relief Act (SCRA) when their military service materially affects their ability to appear before court. But how does this process work? We’ll discuss proper protocol for navigating cases involving service members.
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Military Rights Under the Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act (SCRA) protects active duty members whose military duties materially affect their ability to handle certain legal and financial obligations. This federal law covers all full-time Armed Forces personnel as well as reservists, and National Guard members called to active duty.
Among the several protections the SCRA provides active service members include protection from eviction due to non-payment, freedom to choose their tax domicile, and a 6% interest rate limit for pre-service debt. The primary SCRA right we’ll be covering in this article is the ability to stay in court proceedings.
Can Active Duty Servicemembers Delay Court Proceedings?
Yes, the SCRA permits active duty members to delay court proceedings under certain circumstances. If serving in the Armed Forces prevents you from attending civil proceedings, you may request a delay of at least 90 days. The court can choose to extend this delay to another 90 days, if necessary.
What exactly does this mean for a service member? Delaying court proceedings ensures that the judgment won’t be biased against them. Moreover, they have more time to prepare for the court hearing.
SCRA Legal Provisions
The SCRA grants certain legal protections to military members that empower them to focus on serving in the Armed Forces. You’re permitted to delay the court proceedings for at least 90 days. The judge can extend this delay if it can be proven that you need more time to fulfill your duties.
Moreover, the SCRA states that the court can’t enter into default judgment without an affidavit. These legal protections are outlined in Sections 521 and 522 of the SCRA. A military legal assistance attorney can help you understand the legal jargon, if necessary.
Types of Proceedings the SCRA Can Delay
It should be highlighted that the SCRA legal protections don’t apply to criminal cases. The ability to delay proceedings is limited to civil cases and administrative proceedings. These cases may involve child support, debt collection, foreclosures or divorce.
It is also essential to prove that your military service has materially affected your ability to show up for these proceedings. If you don’t have proof of military service, you risk not being protected under the SCRA.
How Does Delaying of Court Proceedings Work?
Unfortunately, SCRA rights aren’t automatically activated. You must be proactive in seeking SCRA protections. Not all service members are familiar with their SCRA rights and the protocol to activate them. Luckily, you don’t need to be a law expert to request SCRA protections.
Following proper protocol is essential to spare yourself from a default judgment or push through with a delay in court proceedings. If you find yourself unable to appear at a state or federal courthouse, you should follow these steps:
- Provide proof that SCRA applies to you: Presenting military status evidence is one of the most vital components of activating SCRA rights. Moreover, you need proof that you’re eligible to delay court proceedings. Your deployment order or a letter from your commanding officer can help. The documents you present should indicate your starting date and when you’ll be relieved from active service. It should also state where you’re based at the moment to show that you’re incapable of attending the hearing.
- Prepare a written notice with the SCRA protection request: Your request for SCRA protections must be done on paper, and the court must acknowledge this notice for it to be legitimate. A proper request can defend you if issues arise, and a verbal notice isn’t enough to satisfy a civil court.
- Confirm the written request has been applied: You shouldn’t assume that your request is granted just because your proved you are rendering military service. You need to confirm that the SCRA protection has been activated to avoid future problems.
Factors Considered When Requesting a Stay in Court Proceedings
Rendering military service doesn’t suffice for SCRA rights to be activated. Your legal assistance office can provide more context, but in general, the following factors can affect your ability to delay court proceedings:
- The material impact of military service: It must be proven that your military service has materially affected your ability to show up to court proceedings. This means you may be deployed in another area for at least 90 days, or performing specific duties that won’t allow you to attend the hearing.
- Providing evidence of military service: Your active duty dates should coincide with the hearing date. While you can show your deployment orders, another way to confirm your military status is by seeking assistance from SCRACVS.
- Judge’s discretion: The judge handling your civil case is authorized to determine if SCRA protections apply to your case. A definite way to secure an official court document that legitimizes your request is getting the judge’s approval.
Final Words
Protection from a default judgment and delaying civil proceedings can spare you from legal trouble. The SCRA can help you focus on military service, but you must provide proof that you’re on active duty to be covered by this law. Fortunately, SCRACVS can help you obtain the proof you need so you can focus on your Armed Forces duties. Click here to sign up at SCRAVS and verify the active duty status.
FAQs
What is the Civil Relief Act for military service members?
Formerly the Sailors Civil Relief Act, the SCRA permits service members select legal and financial protections to help them focus on serving the country. The servicemember’s service needs to be verified in order for these protections to be activated.
Does SCRA apply to non-active duty?
No, the SCRA applies to active duty military members only. One of the primary conditions of this federal law is it covers active military members and their dependents only. Other laws cover veterans and their dependents.
What are the requirements for SCRA notice?
An SCRA notice requires proof of active duty service, and should explicitly indicate the particular SCRA right that the service member would like to activate. This should be in written format and acknowledged by the other party.
