LEGAL GUIDE
Written by attorney Andrew Daniel Myers | Jun 5, 2010

How To Stop A Civil Law Suit When Someone Is On Active Military Duty

Where a civil law suit comes up, suit papers are filed, or a pending case requires attention, the fact that one of the parties is serving the country should not be used against them in court. There is protection for folks who are in the service, deployed on official duty. It's called the "Federal Servicemembers Civil Relief Act of 2003." The SCRA, as it's called, replaced the old Soldiers' and Sailors' Civil Relief Act, which dated back to World War II. In fact, both laws date back to the Civil War era.

The SCRA provides protection against various types of legal action including breach of contract, forced bankruptcy, foreclosure and family law judgments. The way it works is this: you or the service member must notify the court of the service member's duty assignment. Request a stay of litigation. This puts the case on hold. You must file a signed statement by the service member's commanding officer specifying that the member is on active duty and stating that the duty will materially affect his or her ability to defend against the law suit for a specified period of time, during which leave is not available. The SCRA entitles the service member to an automatic mandatory 90-day stay of proceedings. After that, an extended, discretionary stay may be allowed if a commanding officer's statement indicates that continued military duty prevents the member's ability to defend. At that point the court must either allow the extended stay of the law suit, or else appoint counsel to protect the service person's rights.

The difference between the old Solders' and Sailors' Act and the newer SCRA is that the new law provides a mandatory initial 90-day stay. Under the old law there was no specific length of the stay and all of the delays were discretionary.

The protections of the SCRA extend to all active-duty service members including reservists and National Guard members serving for more than 30 consecutive days. SCRA also applies during periods of absence from active duty due to illness, injury, leave and other lawful causes. I think you can assume that if you're AWOL, you shouldn't expect the court's protection.

As a technical matter, before most law suits reach the final stage of a judgment, the person bringing the suit must file what is called a military affidavit. This affidavit requires the plaintiff to swear and affirm knowledge that the defendant is not in active duty in the military. Information on active duty service members is available. If someone files a false military affidavit, the judgment would theoretically be reversible. The person who filed the phony affidavit would be liable for perjury.

But, don't let it get that far. The SCRA's purpose is to give service people protection while they are on active duty. An important reminder, though, the SCRA provides a stay of litigation. This does not end the case. It puts it on hold. Once the service member is discharged they have 90 days to report to the court. If they do not, the case could then go to a default judgment and the SCRA provides no protection at that point.

The key is getting a statement from the Commanding Officer, or C.O. in military-speak, and following the procedures spelled out in the law.

Additional resources provided by the author

This answer is provided for informational purposes only. Legal advice can only be given in an office appointment by an attorney licensed in your jurisdiction with experience in the area in which your concern lies.

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