15.B Servicemembers Civil Relief Act

Appendix 15.B – Servicemembers Civil Relief Act (SCRA)

Purpose:

The following provides a condensed version of the provisions of the Servicemembers Civil Relief Act (SCRA)1 that affect child support enforcement.  

Law

Effective December 19, 2003, SCRA replaced the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA).  The SCRA provides temporary suspension of judicial and administrative proceedings that may adversely affect a servicemember’s civil rights during active military service.  

Title I - General Provisions

Section 511: Definitions

1) Servicemember includes – members of the armed forces (Army, Navy, Air Force, Marine Corps, and Coast Guard) as well as commissioned officers of both the National Oceanic and Atmospheric Administration and the Public Health Service.  

NEW:  In addition, servicemembers include armed forces’ reservists and National Guard Members, who receive orders from the federal government to active duty status for 30 days or more for national defense purposes.  

2) Court is amended to mean “a court or an administrative agency of the United States or of any State.”  

NEW:  This means the protection of the SCRA is now expanded to protect servicemember rights at administrative proceedings in addition to the judicial proceeding protections provided by SSCRA.  

Section 514: Extension of Protections to Citizens Serving With Allied Forces

NEW:  Protection of the SCRA is extended to citizens of the United States who are serving with forces of a nation with which the United States is allied in the prosecution of a war or military action, if that service with the allied force is similar to the military service as defined in this Act.  

Section 517: Waiver of Rights Pursuant to Written Agreement

NEW:  The SCRA allows a servicemember to specifically waive SCRA rights in writing either during or immediately after the period of the servicemember’s military service.  The written agreement will specify the legal instrument to which the waiver applies.  

Section 519: Legal Representatives

If the servicemember waives his or her rights, the Wyoming CSP can proceed with child support establishment or modification and should attempt to stipulate to a new or modified order as discussed in Chapter 8 Establishment or Chapter 10 Review and Adjustment.:  SCRA clarifies that a legal representative may represent interests of a servicemember and that legal representative may be an attorney acting on the behalf of a servicemember or an individual possessing a power of attorney.  The term servicemember will be treated as including a reference to a legal representative of the servicemember.  

Title II – General Relief

Section 521: Default Judgment

REVISED:  To any civil action in which the defendant does not make an appearance, the court or administrative agency, before entering judgment for the plaintiff, will require the plaintiff to file with the court an affidavit stating whether or not the defendant is in military service and show necessary facts to support the affidavit. If the plaintiff is unable to determine whether or not the defendant is in military service, plaintiff shall state that the plaintiff is unable to make a determination.  

Note:  The requirements within the “Default Judgment” section applies to final orders/judgments.  It does not apply to temporary or interim orders (e.g. order to appear for genetic testing).

REVISED:  In a default hearing, when it appears that the defendant is in the military, the court may not enter a judgment until after the court appoints an attorney to represent the defendant.  If the appointed attorney cannot locate the servicemember, actions by the attorney in the case will not waive any defense of the servicemember or otherwise bind the servicemember.  

NEW:  If based on the affidavits filed in a default hearing, the court is unable to determine whether the defendant is in military service, the court, before entering judgment, may require the plaintiff to file a bond in an amount approved by the court.  If the defendant is later found to be in military service, the bond will be available to indemnify the defendant against any loss or damage the defendant may suffer by reason of any judgment for the plaintiff against the defendant, should the judgment be set aside in whole or in part.  

NEW:  An automatic stay of proceedings will be granted (minimum of 90 days) in default proceedings in which the defendant is in the military service and upon application of an attorney or on the court’s own motion.  The stay is granted: (1) if the court determines that there may be a defense to the action and a defense cannot be presented without the presence of the defendant; (2) after due diligence, the attorney has been unable to contact the defendant; or (3) the attorney certifies to the court that a meritorious defense exists.  

Section 522: Stay of Proceedings When Servicemember Has Notice

NEW:  At any stage before final judgment in a civil action or proceeding in which a servicemember is a party, the court may on its own motion and will, upon application by the servicemember, stay the action for a period of not less than 90 days.  

NEW:  An application for a stay will include: (1) a letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear and (2) a letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.  

REVISED:  Application for a stay does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense relating to lack of personal jurisdiction).  

REVISED:  Servicemember who is granted a stay of a civil action or proceeding under this section may apply for an additional stay based on continuing material effect of military duty on the servicemember’s ability to appear.  The same information required for the initial stay will be included in the application.  

REVISED:  Should the court refuse to grant an additional stay of proceedings in this section, the court will appoint counsel to represent the servicemember in the action or proceeding.  

NEW:  A servicemember who applies for a stay under this section and is unsuccessful may not seek the protections afforded by Section 201 (Default Judgment).  

Section 524: Stay or vacation of execution of judgments, attachments or garnishments and

Section 525: Duration and term of stays; codefendants not in service

The court may suspend the enforcement of a judgment, attachment or garnishment if the court believes the serviceman’s ability to make payments is materially affected by reason of military service.

Title VI – Administrative Remedies

Section 582: Certificates of Service; Persons Reported Missing

REVISED:  Upon request, the Secretary of the Department of Defense will provide a certificate indicating whether an individual is in the military or not.

Note:  In a default situation discussed above in SCRA Title II – General Relief, the Wyoming CSP may contact the Department of Defense for a certificate indicating whether an individual is in the military.  DOD has developed a website to provide this information.  To gain access to this website, contact Defense Manpower Data Center (DMDC) at https://www.dmdc.osd.mil/ or 703-696-6762.

Title VII - Further Relief

Section 594: Health Insurance Reinstatement

NEW:  SCRA adds a new provision that guarantees that an individual’s personal health insurance that was terminated because of entry into military service shall be reinstated upon release from military service without any exclusions or waiting periods.  

 _________________________________

1The entire act may be found at http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION=BROWSE&title=50uscApp