Stay of Proceedings Under the Servicemembers Civil Relief Act
When military servicemembers are involved in family court proceedings, their service requirements may preclude their ability to participate for a period of time. Deployment to foreign countries and combat zones can impact the ability to prepare for or attend proceedings. A "stay" can place the case on hold for a period of time, or may require a court to appoint counsel to represent the interests of the servicemember if the case must proceed. The Servicemembers Civil Relief Act (SCRA) specifies the criteria for a stay of proceedings under certain circumstances involving military members.Military Status
Because the stay protection is for military members, it is important to determine whether a named party in a court action is in the military. Military status can change over the course of a proceeding as well. When a person has not responded or appeared in a proceeding, military status must be ascertained. There is a Department of Defense website available for search at https://scra.dmdc.osd.mil/SCRA/#/home. It is necessary to know the person's name and social security number to search the website.Stay
If a party is determined to be in the military, a court must decide whether to grant a stay of proceedings. The SCRA states that the court shall stay the proceedings for at least 90 days upon request by counsel, request by a servicemember who provides sufficient supporting information, or on the court’s own initiative if the court determines that there may be a defense to the action that cannot be presented without the presence of the servicemember. The term shall is a mandatory term.A Stay Request by the Servicemember
When a servicemember has requested a stay and provided sufficient supporting information, a court shall enter a stay of proceedings for at least 90 days. Stay eligibility is not just for those on active duty military service, but it also extends to 90 days after completion of military service. In order to qualify for a stay, the servicemember must provide:
- a statement as to how current military duties materially affect the ability to appear for a proceeding and a predicted availability date, and
- a statement from the commanding officer stating that current military duty prevents appearance and stating that military leave is not available
Therefore the statement of the servicemember alone is not sufficient. Making a request for a stay does not constitute an entry of appearance into the proceedings. This is important because an entry of appearance bestows jurisdiction on the court. A servicemember may also request an additional stay if military duties continue to preclude the ability to appear. The same information above must be provided to request an additional stay. However, granting an additional stay is discretionary with a court. A court must find again that the servicemember's ability to prosecute or defend is materially affected because of his or her service requirements to justify a stay.Janko Family Law - Is It Time for a Change?
Divorce and family law matters are difficult to navigate alone. With offices in Colorado Springs and Denver, we can guide you through the experience by handling pleading and motion preparation and filing, negotiation, mediation, and court proceedings from start to finish. This allows you to focus on moving forward to a better future rather than on trying to figure out how the overly complex court system works. Remember that change often creates new opportunity and a better future. Janko Family Law can help ensure that your best interests and the best interests of your family are protected. Contact us at 719-344-5523 or complete our online form to set up a free thirty-minute informational consultation.