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March 09, 2005
Soldiers and Sailors Civil Relief Act - A General Overview
The Soliders and Sailors Civil Relief Act (SSCRA) is a protective device for U.S. soldiers and sailors during a time of conflict or training. See 50 U.S.C. App. The SSCRA is not intended to be used as a shelter from facing legal and family responsibilities. Because of the current extensive and often extended deployments of National Guard and regular military members, it is important to understand what the SSCRA does and does not apply to in the family law area. There are four key SSCRA provisions that are important to observe when enforcing child support:
First, the SSCRA permits stays of civil court proceedings whenever military service prevents a plaintiff or defendant in military service from asserting or protecting a right. Members' requests for a stay of proceedings under SSCRA must be granted unless the members' military service does not materially affect their ability to defend themselves. Note that the Department of Defense recently revised its regulations in this area. DOD Directive 1327.5 section 6.25 now specifically provides "When a service member requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave." Note also that some courts might not consider presence of service member necessary to the proceeding; thus, no stay will be granted. The facts of each case will determine whether the trial court abused discretion in refusing a stay request.
Second, the SSCRA provides that the maximum duration of a stay of proceedings is the member's period of military service plus three months after discharge. Following this period, the member must appear in court.
Third, the SSCRA affords service members relief against default judgment by providing potential means to have the judgment reopened. If there is default of any appearance by the defendant, before a party can obtain a default judgment, he/she must submit an affidavit stating whether the defendant is or is not in the military service or that the plaintiff does not know whether defendant is in the military service. A judgment obtained without the affidavit is voidable (not void) upon defendant's showing that presentation of the defense was prejudiced by defendant's military service. The court then must appoint an attorney if the defendant is in the service and does not have an attorney present in court or if the plaintiff does not know whether the defendant is in the service. The responsibility of the court appointed attorney is to ascertain whether the defendant is in the military and, if so, typically to request a stay of proceedings in the defendant's behalf. Members may request to reopen a default judgment if there has been no appearance, the service member has a meritorious or legal defense, and military service adversely affected the member's ability to defend. The application to reopen must be to same court that rendered the judgement. The SSCRA does not empower a federal court to collaterally review, vacate, or impede decisions of a state court.
Fourth, the SSCRA provides that any judgment or garnishment may be stayed or vacated unless military service does not materially affect member's ability to comply. Service members can, for example, request modification of child support or alimony. Courts may grant prospective relief as well. Members can initiate a proceeding to determine extent of their support obligations because of changes in circumstances when they entered active duty.
These are some of the basic aspects of the SSCRA as they apply to the family law area and should only be used as a general guide. The facts and circumstances of any particular case vary, as will the result and the degree of protection, if any, afforded by the SSCRA.
Posted on March 09, 2005 | Permalink
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Soldiers and Sailors Civil Relief Act - A General Overview
The Soliders and Sailors Civil Relief Act (SSCRA) is a protective device for U.S. soldiers and sailors during a time of conflict or training. See 50 U.S.C. App. The SSCRA is not intended to be used as a shelter from facing legal and family responsibilities. Because of the current extensive and often extended deployments of National Guard and regular military members, it is important to understand what the SSCRA does and does not apply to in the family law area. There are four key SSCRA provisions that are important to observe when enforcing child support:
First, the SSCRA permits stays of civil court proceedings whenever military service prevents a plaintiff or defendant in military service from asserting or protecting a right. Members' requests for a stay of proceedings under SSCRA must be granted unless the members' military service does not materially affect their ability to defend themselves. Note that the Department of Defense recently revised its regulations in this area. DOD Directive 1327.5 section 6.25 now specifically provides "When a service member requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave." Note also that some courts might not consider presence of service member necessary to the proceeding; thus, no stay will be granted. The facts of each case will determine whether the trial court abused discretion in refusing a stay request.
Second, the SSCRA provides that the maximum duration of a stay of proceedings is the member's period of military service plus three months after discharge. Following this period, the member must appear in court.
Third, the SSCRA affords service members relief against default judgment by providing potential means to have the judgment reopened. If there is default of any appearance by the defendant, before a party can obtain a default judgment, he/she must submit an affidavit stating whether the defendant is or is not in the military service or that the plaintiff does not know whether defendant is in the military service. A judgment obtained without the affidavit is voidable (not void) upon defendant's showing that presentation of the defense was prejudiced by defendant's military service. The court then must appoint an attorney if the defendant is in the service and does not have an attorney present in court or if the plaintiff does not know whether the defendant is in the service. The responsibility of the court appointed attorney is to ascertain whether the defendant is in the military and, if so, typically to request a stay of proceedings in the defendant's behalf. Members may request to reopen a default judgment if there has been no appearance, the service member has a meritorious or legal defense, and military service adversely affected the member's ability to defend. The application to reopen must be to same court that rendered the judgement. The SSCRA does not empower a federal court to collaterally review, vacate, or impede decisions of a state court.
Fourth, the SSCRA provides that any judgment or garnishment may be stayed or vacated unless military service does not materially affect member's ability to comply. Service members can, for example, request modification of child support or alimony. Courts may grant prospective relief as well. Members can initiate a proceeding to determine extent of their support obligations because of changes in circumstances when they entered active duty.
These are some of the basic aspects of the SSCRA as they apply to the family law area and should only be used as a general guide. The facts and circumstances of any particular case vary, as will the result and the degree of protection, if any, afforded by the SSCRA.
Posted on March 09, 2005 in Child Support, Federal Laws-Cases | Permalink
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Main
| April 2005 »
March 09, 2005
Soldiers and Sailors Civil Relief Act - A General Overview
The Soliders and Sailors Civil Relief Act (SSCRA) is a protective device for U.S. soldiers and sailors during a time of conflict or training. See 50 U.S.C. App. The SSCRA is not intended to be used as a shelter from facing legal and family responsibilities. Because of the current extensive and often extended deployments of National Guard and regular military members, it is important to understand what the SSCRA does and does not apply to in the family law area. There are four key SSCRA provisions that are important to observe when enforcing child support:
First, the SSCRA permits stays of civil court proceedings whenever military service prevents a plaintiff or defendant in military service from asserting or protecting a right. Members' requests for a stay of proceedings under SSCRA must be granted unless the members' military service does not materially affect their ability to defend themselves. Note that the Department of Defense recently revised its regulations in this area. DOD Directive 1327.5 section 6.25 now specifically provides "When a service member requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave." Note also that some courts might not consider presence of service member necessary to the proceeding; thus, no stay will be granted. The facts of each case will determine whether the trial court abused discretion in refusing a stay request.
Second, the SSCRA provides that the maximum duration of a stay of proceedings is the member's period of military service plus three months after discharge. Following this period, the member must appear in court.
Third, the SSCRA affords service members relief against default judgment by providing potential means to have the judgment reopened. If there is default of any appearance by the defendant, before a party can obtain a default judgment, he/she must submit an affidavit stating whether the defendant is or is not in the military service or that the plaintiff does not know whether defendant is in the military service. A judgment obtained without the affidavit is voidable (not void) upon defendant's showing that presentation of the defense was prejudiced by defendant's military service. The court then must appoint an attorney if the defendant is in the service and does not have an attorney present in court or if the plaintiff does not know whether the defendant is in the service. The responsibility of the court appointed attorney is to ascertain whether the defendant is in the military and, if so, typically to request a stay of proceedings in the defendant's behalf. Members may request to reopen a default judgment if there has been no appearance, the service member has a meritorious or legal defense, and military service adversely affected the member's ability to defend. The application to reopen must be to same court that rendered the judgement. The SSCRA does not empower a federal court to collaterally review, vacate, or impede decisions of a state court.
Fourth, the SSCRA provides that any judgment or garnishment may be stayed or vacated unless military service does not materially affect member's ability to comply. Service members can, for example, request modification of child support or alimony. Courts may grant prospective relief as well. Members can initiate a proceeding to determine extent of their support obligations because of changes in circumstances when they entered active duty.
These are some of the basic aspects of the SSCRA as they apply to the family law area and should only be used as a general guide. The facts and circumstances of any particular case vary, as will the result and the degree of protection, if any, afforded by the SSCRA.
Posted on March 09, 2005 | Permalink
|
TrackBack (0)
Soldiers and Sailors Civil Relief Act - A General Overview
The Soliders and Sailors Civil Relief Act (SSCRA) is a protective device for U.S. soldiers and sailors during a time of conflict or training. See 50 U.S.C. App. The SSCRA is not intended to be used as a shelter from facing legal and family responsibilities. Because of the current extensive and often extended deployments of National Guard and regular military members, it is important to understand what the SSCRA does and does not apply to in the family law area. There are four key SSCRA provisions that are important to observe when enforcing child support:
First, the SSCRA permits stays of civil court proceedings whenever military service prevents a plaintiff or defendant in military service from asserting or protecting a right. Members' requests for a stay of proceedings under SSCRA must be granted unless the members' military service does not materially affect their ability to defend themselves. Note that the Department of Defense recently revised its regulations in this area. DOD Directive 1327.5 section 6.25 now specifically provides "When a service member requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave." Note also that some courts might not consider presence of service member necessary to the proceeding; thus, no stay will be granted. The facts of each case will determine whether the trial court abused discretion in refusing a stay request.
Second, the SSCRA provides that the maximum duration of a stay of proceedings is the member's period of military service plus three months after discharge. Following this period, the member must appear in court.
Third, the SSCRA affords service members relief against default judgment by providing potential means to have the judgment reopened. If there is default of any appearance by the defendant, before a party can obtain a default judgment, he/she must submit an affidavit stating whether the defendant is or is not in the military service or that the plaintiff does not know whether defendant is in the military service. A judgment obtained without the affidavit is voidable (not void) upon defendant's showing that presentation of the defense was prejudiced by defendant's military service. The court then must appoint an attorney if the defendant is in the service and does not have an attorney present in court or if the plaintiff does not know whether the defendant is in the service. The responsibility of the court appointed attorney is to ascertain whether the defendant is in the military and, if so, typically to request a stay of proceedings in the defendant's behalf. Members may request to reopen a default judgment if there has been no appearance, the service member has a meritorious or legal defense, and military service adversely affected the member's ability to defend. The application to reopen must be to same court that rendered the judgement. The SSCRA does not empower a federal court to collaterally review, vacate, or impede decisions of a state court.
Fourth, the SSCRA provides that any judgment or garnishment may be stayed or vacated unless military service does not materially affect member's ability to comply. Service members can, for example, request modification of child support or alimony. Courts may grant prospective relief as well. Members can initiate a proceeding to determine extent of their support obligations because of changes in circumstances when they entered active duty.
These are some of the basic aspects of the SSCRA as they apply to the family law area and should only be used as a general guide. The facts and circumstances of any particular case vary, as will the result and the degree of protection, if any, afforded by the SSCRA.
Posted on March 09, 2005 in Child Support, Federal Laws-Cases | Permalink
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