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The Service Members Civil Relief Act: Legal Protections for Armed Forces Members on Active Duty

 

What is the Service Members Civil Relief Act?

The Service Members Civil Relief Act (SCRA) is a federal law that provides special legal protections and help to members of the Armed Forces who are on active duty. Congress passed the law so that legal actions may be put on hold for service members during military service. SCRA only applies to civil legal matters—not criminal matters.

Who is considered a service member?

A service member is a member of any of the following: Army, Navy, Air Force, Marine Corps, National Guard, Coast Guard, the Commissioned Corps of the National Oceanic and Atmospheric Administration, and the Commissioned Corps of the Public Health Service. SCRA applies to service members in all 50 states and all U.S. territories (Puerto Rico, U.S. Virgin Islands, Guam, and the Marianas Islands).

When does SCRA apply?

SCRA does not apply automatically—a person must be on active duty or deployed, and must request the protections of SCRA in order to benefit from its protections. Active duty includes annual training duty.

If a person is on active duty, the SCRA protections usually begin the first date of active duty and end on the last day of the active duty period. However, they may be extended from 30 to 180 days beyond the last day of active duty.

What protection and assistance does SCRA offer to service members?

The main protection SCRA offers is that it stops (the legal term is stays) lawsuits—primarily divorces. Many people think that SCRA protects service members from being sued. SCRA does not keep service members from being sued or from being a witness in a legal proceeding. SCRA also provides the following protections.

LAWSUIT PROTECTIONS

Preventing default judgments against service members: A default judgment is a judgment that is entered against a person (the defendant) who has failed to defend him- or herself in a lawsuit. Because a service member may have good reasons for not appearing and defending him- or herself in a lawsuit while on active duty, SCRA requires the plaintiff (the person filing the suit) to file a document called an affidavit, stating whether or not the defendant is in the service. The court cannot enter a default judgment until it receives that affidavit. If the defendant is in military service, the court must appoint an attorney to represent the defendant before entering a default judgment against him or her. Also, the defendant must have notice of (know about) the lawsuit in order to get the protection of SCRA.

Stopping civil court or administrative proceedings against service members: SCRA permits a service member to stay (stop or delay) a legal action if the court determines that:

  • The service member might have a defense to the action,
  • The service member cannot defend him- or herself without being present, and
  • The service member has honestly tried to appear in court but cannot. (If a court determines that a service member could have appeared but does not try to appear, this is an example of acting in bad faith. If a court finds that a service member has acted in bad faith, it will not grant a stay of the legal action.)

The service member must make this request in writing while on a tour of military service, or within 90 days after termination of or release from military service, by sending:

  • A letter or other type of communication explaining the service member’s military duties and the need for a stay;
  • A starting date when the service member will be able to appear; and
  • A letter from the service member’s commanding officer, supporting his or her request for a stay.

If a request for a stay is denied, the service member cannot then invoke the protections of SCRA to try to set aside the default judgment.

In New Jersey, lawsuits in the family division of the Superior Court may continue, but the family division works with service members by allowing them to testify by telephone during periods of authorized leave. This way, the service member is protected and the other members of the family are allowed to continue to seek relief in family court.

Giving service members more time to bring lawsuits: There are rules for how and when different types of civil lawsuits may be filed. For example, a personal injury lawsuit must be filed within two years of the date of the discovery of the injury. However, SCRA requires that the “clock” stop for service members on active duty.

INSURANCE PROTECTIONS

Suspending life insurance payments: Under SCRA, service members may stop payment of life insurance premiums during active duty. SCRA also requires that commercial life insurance coverage continue during the period of military service and for two years thereafter.

Reinstatement of health insurance after period of active duty is completed: SCRA requires that civilian health insurance be reinstated when service members return home after active duty.

Preventing increases in professional liability insurance premiums: Under SCRA, professional liability insurance may be suspended for service members during a period of active duty, and insurance providers may not increase premiums when the insurance is reinstated.

DEBT PROTECTIONS

Garnishment of pay: In certain situations, a service member may be able to avoid having his or her pay garnished. This is especially true if he or she is able to show that there was an absence from a judicial proceeding as a result of military assignment or essential military duty.

Interest rate on credit card or other debt: A service member may reduce to 6% the higher interest rate he or she pays for any financial obligation (credit card, loan, and mortgage) individually or jointly entered into before active service, if active service materially affects the service member’s ability to repay the financial obligation. This reduced interest rate is effective only during the period of active military duty.

This reduced rate does not apply to financial obligations entered into while in active service, federally guaranteed student loans, refinancing, or credit card balance increases.

Installment contracts: An installment contract is an agreement to pay for goods or services over time in multiple payments. A service member who enters into an installment contract before beginning active duty to purchase real or personal property, including a car, is protected under SCRA from making payments if:

  • The service member has paid a deposit or installment before entering into active duty, and
  • Military service “materially affects” the service member’s ability to make payments. A court may compare a service member’s financial condition before and during active duty to determine if he or she qualifies.

If the service member meets those conditions, the seller may not end the contract, take possession of the property for nonpayment, or break the terms of the contract. Only a court can give the seller permission to repossess the property or end the contract.

LEASE AND MORTGAGE PROTECTIONS

Leased vehicles: SCRA allows a service member to terminate a car lease signed either before or during active duty if, after agreeing to the terms of a lease, he or she:

  • Receives orders for a permanent change of station to a location outside the continental U.S., or
  • Is deployed for 180 days or more.

Preventing eviction: Under SCRA, a landlord may not evict a service member on active status, or his or her dependents, from their primary residence without a court order. However, in New Jersey, the Anti-Eviction Act already provides this protection for all tenants—so SCRA is not as important here as it is in other states. Once in court, SCRA permits the court to stay proceedings or adjust obligations in applications for eviction.

Ending a residential lease: SCRA permits service members to terminate a residential lease of property that is occupied, or intended to be occupied, by a service member or his or her dependents.

Paying a mortgage: If a service member entered into a mortgage before the period of military service began and still owes money on that mortgage, then the court may stay proceedings to enforce that mortgage obligation.

HELP WITH PAYING TAXES

SCRA may defer collection of taxes (but not filing of tax returns) for up to 180 days after termination of or release from military service, if the service member’s ability to pay that tax is materially affected by military service.

VOTING RIGHTS

SCRA protects a service member’s right to vote in elections in his or her home state.

DRIVER’S LICENSES

A service member who has registered and licensed his or her vehicle in his or her home state is not required to license and register the vehicle in the host state where he or she is stationed.

Legal Services of New Jersey's Veterans Legal Assistance Project

For additional information about SCRA and other legal rights for veterans, contact the Veterans Legal Assistance Project at Legal Services of New Jersey by calling LSNJ-LAW™, LSNJ’s statewide, toll-free legal hotline, at 1-888- LSNJ-LAW (1-888-576-5529). Hotline hours are Monday through Friday, 8 a.m. to 5:30 p.m.

This article originally appeared in the March 2010 issue of Looking Out for Your Legal Rights®.

This information last reviewed 3/18/10.

 

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