Military status and default judgments

To get a default judgment, you need to find out if the other side in your case is in the U.S. military. Then, you have to let the court know what you found out. 

 

If someone is on active duty in the U.S. military, you'll need to take more steps to finish the case. If you don't, the servicemember can have the judgment canceled (set aside).

 

Are you in the U.S. military?

Laws protect you from default judgments while you are on active duty. 

 

Find out about your legal protections

U.S. military on active duty

You need to find out if the person is on active duty in the U.S. military, or was on active duty in the last 120 days. These legal protections do not apply to reservists or National Guard who have not been called to active duty.

U.S. military branch: Someone serving full-time in the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, or Space Force. This includes reservists on active duty.

National Guard: Someone in the National Guard called to federal active duty for more than 30 days.

Servicemembers can be on active duty whether they are stationed in the United States or in another country.

Commissioned officers in the Public Health Service or National Oceanic Atmospheric Administration are also included. Learn more
Someone who is a commissioned officer in the Public Health Service or the National Oceanic and Atmospheric Administration on active service is considered U.S. military on active duty.

For more details, see 50 USC 3911 and Military Veterans Code sections 400 and 402.

How to find out if someone is on active duty in the U.S. military

You may already know from your interactions with the person or their friends and family whether they are or are not in the military. If you do not know, you can ask them. 

illustration of a magnifying glass

You can also check online with the U.S. military. To check, you need to know the person's name and date of birth or social security number. The website is free to use, but you will need to create an account.

After you send in the person's information, you will get a certificate that says if the person is on active duty in the U.S. military. It will also say if they have no record.

You can also contact the unit or branch you think they are in to find out if they're on active duty or for additional verification.

If you were unable to find out someone's military status

You can include on the court forms what information you have about the person's military status. The judge can then decide what to do. For example, the judge may require you to post a bond before a judgment is entered. This money (the bond) would cover any damage if it turns out the person is on active duty and needs to have the judgment canceled (set aside).

Talk to your court's Self-Help Center staff if you need more help.

If you find out they are on active duty and they did not file a response

The judge must appoint a lawyer for a servicemember before a default judgment can be entered

The judge must appoint a lawyer to make sure the servicemember's rights under the Servicemembers Civil Relief Act (SCRA) and Military and Veterans Code are protected. The lawyer works only on the SCRA issue, not the rest of the case.

The lawyer is given time to reach out to the servicemember to find out if their service impacts their ability to participate. If it does, the case will be delayed for at least 90 days. If it does not, the case can move forward. 

Find out from the court how to ask to have a lawyer appointed for the servicemember. Each court has its own rules for how this works and who has to pay for the lawyer. They may have a form you can use. 

In family law cases, the servicemember can use court forms to ask the court to finish the case without appointing a lawyer or paying a filing fee

If you and the servicemember have a written agreement, the servicemember can give up (waive) their right to have a lawyer appointed so that you can finish your case.

To waive their rights, they need to 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))

You can file these forms when you submit the rest of the judgment paperwork and written agreement. There is no fee to file these forms.