Written by attorney Andrea Koppenhofer

Vacating a Default Judgment: The Service Member's Civil Relief Act of 2003

Pursuant to the Service Member's Civil Relief Act of 2003 (SCRA of 2003), 50U.S.C. App. ?521, if a default judgment is entered against a service member during the service member's period of military service, the court entering the judgment shall, upon application by or on behalf of the service member, reopen the judgment for the purpose of allowing the service member to defend the action if it appears that:

(1) The service member was materially affected by reason of that military service in making a defense to the action; and (2) The service member has a meritorious or legal defense to the action or some part of it.

It is not the duty of the service member's to inform the court upon receiving notice of the action that he or she is on active duty. When a service member has not made an appearance in the action before the court, the court, pursuant to ?521 of the Act, and before entering a default judgment against the service member, must first determine whether an absent or defaulting party is in military service. The burden is on the Plaintiff (the party bringing the action) to file a written affidavit that states "whether or not the defendant is in military service and showing necessary facts in support of the affidavit." Criminal penalties are provided for filing a knowingly false affidavit.

When the affidavit shows the party is in the military, no default can be taken until the court has appointed an attorney to represent the member. If the court fails to appoint an attorney, then the judgment or decree is voidable. 50 U.S.C. App. ? 521(b)(2). For service members who have default judgments entered against them regarding family matters, particularlyl child support, this is an important protection. If you are an active service member and learn that a default judgment was entered against you, you may be able to vacate that judgment under the SCRA.

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