Protections from default judgments for U.S. military members

The Servicemembers Civil Relief Act (SCRA) and state laws protect you from default judgments while you are on active duty for the U.S. Military. A default judgment is when a judge makes a final decision in a case (a judgment) because you did not respond to the lawsuit by the deadline. In general, a default judgment should not be entered if you can't respond due to your military obligations.

The SCRA offers other legal and financial protections to active duty servicemembers. 

Get more information about the SCRA from the American Bar Association.
 

Protections from defaults

Before there's a default judgment, the court must ensure your SCRA rights are protected

To get a default judgment against you, the person who started the court case must tell the court if you are or might be on active duty in the U.S. military and how they know.

If you are on active duty:

  • The judge must appoint a lawyer to make sure your rights under the SCRA are protected 
  • The lawyer should reach out to you to find out if your service impacts your ability to participate in the case

This generally puts the case on hold for at least 90 days. The lawyer can ask the judge for more time if needed. If your service does not impact your ability to participate, then the case can move forward.

In a family law case, like a divorce or parentage case, you can give up (waive) your rights under the SCRA if you have an agreement. This may help your case move forward more quickly. Learn more

Sometimes, like in a divorce case, you and your spouse may have a written agreement covering all the issues in your divorce. You can choose to not respond to the case and ask the judge to make your agreement part of the final judgment.

If this is what you want to do, you can waive your rights under the SCRA to finish the case. To do this, you need to fill out and sign 2 forms:

  • Appearance, Stipulations, and Waivers (form FL-130)
  • Declaration and Conditional Waiver of Right under the Servicemembers Civil Relief Act (form FL-1301(A))

These should be filed with the rest of the judgment paperwork and your signed written agreement. There is no fee to file these forms.

You can ask the judge to cancel a default judgment if your rights weren't protected

If a default judgment was entered against you while you were on active duty, or within 60 days of leaving active duty, you may be able to have the judgment canceled (set aside). You must ask for the set aside within 90 days of leaving active duty.

To have the default set aside, you will need to show:

  • Your service impacted your ability to participate in your case
  • You have a legal defense to your case 

An order setting aside a judgment does not mean that you win the case. It just means that the case starts over so you can participate.

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