Application of the Service-Members Civil Relief Act  in Divorces and other Family Law Matters

Federal Legislation known as the Service-Members Civil Relief Act (known as the "SMCRA," or the "Act"), allows service members to postpone and delay civil lawsuits asserted against them under certain circumstances that  affect the service member's legal rights as a result of the soldier's military service.   In civil lawsuits involving a military service member (regardless of whether the suit  is a divorce, custody case, or other civil suit such as a personal injury suit), the SMCRA  should always be considered as the matter moves forward.

The "Act" is federal law that vests service members with important legal rights during their military service.  It covers contracts made by soldiers, rental agreements effected by military service and deployment, disputes with landlords, charge card/credit card disputes and interest rates, mortgages, including foreclosure and interest, divorces, custody suits, modifications of court orders, actions for personal injuries and numerous other civil suits. 

The SMCRA when properly asserted functions to protect active duty service members, members of the reserves, and members of the national guard that are activated and/or otherwise called to military duty.  To receive the benefits of the "Act" the service-member must assert the "Act," meaning that the service member must assert that military service material effects his or her legal rights and inhibits them in properly defending and/or asserting their legal rights in the pending action/suit.  Depending upon the specific issue, and protection to be asserted, the service-member must assert the "Act" within 30 to 180 days after his or military service concludes. 

Once properly asserted through filing notice of the intent to rely upon the "Act" in the pending action, typically accompanied by documentation of the military service that impedes the service-members ability to properly address the legal matter at hand, the suit is suspended until such time as the service-member returns from military service allowing him/her to properly address the legal matter.  By asserting the "Act" properly, a default judgment cannot be entered against the soldier.  In the event that a judgment is erroneously entered, the service-member may have the judgment set aside upon his/her return from service.

While the "Act" provides significant protections and those who violate the "Act" may be subjected to penalties at law, there are certain circumstances where the service-members military service cannot be used to suspend a legal action such as certain cases involving child support as the children of a military service-member still must be supported even though the service-member is away on military duty.                                                            

REQUIREMENTS TO INVOKE THE ACT IN CIVIL LAW SUITS:

If you are an active duty service member, and unable to appear in either a court or administrative proceeding due to your military duties you may postpone the proceeding for a minimum of 90 days upon making a proper application. Your request must: 
      (1)  be in writing;
      (2) explain why your current military duty materially adversely affects  your ability to appear in the proceeding;
      (3) provide a date when the service member anticipates he/she can appear in the matter; and,
      (4) include a letter from your commander stating that your military duties preclude your appearance and you are not authorized for leave at the time of the hearing.

This application to the court does not constitute a legal appearance in the court.  Additional delays may be granted at the discretion of the court, and if the court denies an additional delay, the court must appoint an attorney to represent your to protect your rights.

APPLICATION OF ACT TO TERMINATE LEASES:

Recent revisions to the "Act" now provide service members greater latitude in terminating leases.  For example, before the latest revisions to the "Act," a service-member could only terminate a property/realty rental lease if the lease was made "pre-service" for the purpose of habitation,   professional operation, operation of a business, for agricultural use, or similar use. New provisions in the SMCRA allows the service-member to terminate leases by active duty service members who subsequent to the onset of military service, receive orders for a permanent change of station,  or a orders for deployment for 90 days or more.

The SMCRA also includes pre-service automobile leases entered into by military service-members and their dependents where the leased vehicle is leased for their personal and/or business use. The pre-service automobile lease may be cancelled if the service member receives orders calling him/her to active duty for a period of 180 days or more.           

An automobile lease entered into while the service-member is already on active duty service may be terminated if the member receives orders for a permanent change of station to a location outside the continental United States; or, deployment orders for a period of 180 days or more.                                     
                                         
CONCLUSION:      

There are many legal issues other than those briefly discussed here above to which the SMCRA may be applicable. The information contained herein id only for general informational purposes.  If you are facing a legal suit, potential action, or should you wish to discuss your rights as a either a service-member or dependent of a service-member under the "Act," we invite you to contact on of our attorneys to discuss your specific issues. 

• Eviction for Nonpayment of Rent
• Although the SCRA does not excuse soldiers from paying rent, it does afford some relief if military service makes payment difficult. Military members and their dependents (in their own right) have some protection from eviction under the Servicemembers Civil Relief Act (SCRA), Section 301.
• The landlord must obtain a court order to evict a military member or his/her dependents. The court must find the member’s failure to pay is not materially affected by his/her military service. Material effect is present where the service member does not earn sufficient income to pay the rent. Where the member is materially affected by military service, the court may stay the eviction ( three months unless the court decides on a shorter or longer period in the interest of justice) when the military member or dependents request it. There is no requirement that the lease be entered into before entry on active duty, and the court could make any other “just” order under § 301 of the SCRA. The requirements of this section are:
  (1) The landlord is attempting eviction during a period in which the service member is in military service or after receipt of orders to report to duty;
  (2) The rented premises is used for housing by the spouse, children, or other dependents of the service member; and
  (3) The agreed rent does not exceed $2,400 per month. Soldiers threatened with eviction for failure to pay rent should see a legal assistance attorney. (The amount is subject ot change in future years and as of 2004 the ceiling is $2465.00)
• Default Judgment Protection
• If a default judgment is entered against a servicemember during his or her active duty service, or within 60 days thereafter, the SCRA allows the service member to reopen that default judgment and set it aside. In order to set aside a default judgment, the service member must show that he or she was prejudiced by not being able to appear in person, and that he or she has good and legal defenses to the claims against him/her. The servicemember must apply to the court for relief within 90 days of the termination or release from military service. (See Section201, SCRA)
• Life Insurance Protection
• The SCRA also permits the servicemember to request deferment of certain commercial life insurance premiums and other payments for the period of military service and two years thereafter. If the Department of Veteran Affairs approves the request, the United States will guarantee the payments, the policy shall continue in effect, and the servicemember will have two years after the period of military service to repay all premiums and interest. The SCRA increases the amount of insurnce this program will cover to the greater of $250,000.00 or the maximum limit of the Servicemembers Group Life Insurance. (See Section 401, SCRA)
• State Taxation Clarification
• The SCRA provides that a nonresident servicemember's military income and personal property are not subject to state taxation if the servicemember is present in the state only due to military orders., The state is also prohibited from using the military pay of these nonresident servicemembers to increase the state income tax of the spouse. Under prior law, some states did not tax the nonresident servicemember directly, but did include the nonresident servicemember's income in the spouse's income, resulting in higher taxes for the spouse. (See Section 511, SCRA)
• Health Insurance Reinstatement
• The SCRA further provides for the reinstatement of any health insurance upon termination or release from service. The insurance must have been in effect before such service commenced and terminated during the period of military service. The reinstatement of the health insurance is not subject to exclusinons or a waiting period if the medical condition in question arose before or during the period of service, the exclusion or waiting period did not apply during coverage, and the medical condition has not been determined by the Secretary of the Veteran Affairs to be a disability incurred or aggravated by military service. The reinstatement of health insurance protection does not apply to a servicemember entitled to participate in employer-offered insurance (See rules regarding employer offered health insurance care in the Uniformed Services Employment and Re-employment Act). And finally, the servicemember must apply for the reinstatement of the health insurance within 120 days after termination or release from military service. As always submit such request to the insurance company in writing with a copy of the orders for active duty and release from active duty. (See Section 704, SCRA)

JMMiller@batsonnolan.com