There are two laws the protect service members who will have a hard time participating in a court or administrative proceeding because of their military duties. They are:
- The federal Service members’ Civil Relief Act (SCRA)
- The Maine Service members’ Civil Relief Act (ME SCRA)
The federal and Maine laws are very similar, but there are some differences. The article focuses on Maine’s law and those parts of the federal law that apply in Maine. For more information about the federal SCRA, go here.
What is the SCRA?
The Maine Service members Civil Relief Act is a state law that gives protections to a service member who is involved a civil law suit. It does not apply to criminal matters and it only applies to cases in the state of Maine.
A service member is a member of the federal uniformed forces or state military forces. State of Maine military forces are defined as:
- Maine Army National Guard or Maine Air National Guard when not in federal service
- the militia, naval militia, and the Maine State Guard when and if organized by direction of the Governor
It does not apply to the Maine Military Authority.
In order for SCRA to apply, the service member’s military service must “materially affect” their ability to participate in the legal matter. If that is the case, it applies to those service members who are plaintiffs (the person bringing the case), defendants (the person the case is against) or attorneys involved in the case.
It gives a service member a chance to participate in the case, by either:
- delaying the case
- quickening the case
- allowing the service member to participate in an alternate way, like phone, video conference or internet
It may also require the court to appoint an attorney to the service member.
The ME SCRA cannot stop a law suit from happening. It is also not a defense in a law suit. Instead, the ME SCRA allows a service member a reasonable time to make arrangements to appear in court or an administrative hearing.
Who is eligible?
The SCRA does not automatically apply if someone is in the military.
SCRA only applies if:
- A service member is in military service or within the first 90 days from termination/release.
- The military service keeps the service member from putting on or defending the legal case in the normal time a case would happen.
- The service member proves to the court or administrative body hearing the case that his or her military service is keeping him or her from participating in the case.
Only service members are protected by the SCRA. For example, in a divorce the non-service member cannot use SCRA In cases where two people are listed as co-parties (they are both suing: co-Plaintiffs, or both being sued: co-Defendants), only the service member can ask for the SCRA protections. This means if a husband and wife are being sued together (for example, in an adoption), only the service member spouse can ask for SRCA protections.
Does the SCRA apply to reservists?
The SCRA applies to reservists who are ordered to report for military service. They must be “affected” by military service. The SCRA never applies to inactive service members, like those in IRR (inactive ready reserve).
What happens if a service member is reported missing?
If a service member is reported as missing, he/she is considered to be in military service until found. The SCRA applies.
What is being requested?
A service member can ask for a “stay” of the case. A stay is when a case is put on hold. No action is taken for a set period of time in the court or administrative case. The stay is designed to give the service member time to arrange for leave or pass so he/she can appear in court or have a deposition taken. An appearance can be by phone, video, or internet. It does not have to be in-person.
A service member can also ask to have an expedited hearing (ask to move the hearing date up. A service member would ask for this if their military duties would materially affect their ability to participate in the case on the date the original hearing is set for.
How long is a stay?
The stay is not for the entire time a service member is in military service, such as
an entire deployment. A stay cannot delay the case indefinitely. Instead, the SRCA allows for a minimum 90 day stay (or longer) if the court or administrative agency decides a stay is needed.
An additional stay (beyond the initial stay) may be requested if there is good cause for more time. The service member must show that there is a continuing material effect on their ability to participate in the case because of their military service.
However, if there is an issue about the children, the court should only postpone the case if it is in the child’s best interests. This is because courts have a duty to look out for the best interests of the children. If the Court does not stay the case and enters an order about the children, the Court can revisit the issue after the service member returns from service.
The right to transfer parent-child contact rights
The Maine SCRA authorized a service member to ask a court to allow him or her to temporarily transfer his or her rights to visit with the child to a relative. The relative must be related to the service member by blood or marriage, and have a significant relationship with the child/children. The same standard is used by the Court when making its decision: does the service member’s military duties have a “material affect” on their ability to visit with their child/children.
Under the Maine SCRA the court can make this decision on its own motion, meaning without the service member asking for it.
In either case, the court must make its decision based upon what is in the child’s best interests.
For more information, read the PTLA page on parents on active duty.
What is a deposition?
It is a way to get information someone has about the case. It is also a way to have a service member’s testimony taken so that he or she does not have to go to Court. The other side of the law suit will set up the deposition.
A deposition is not held in a court room. No judge is present. If the other side in the case is represented by an attorney, the attorney will ask the service member questions. If the other side does not have an attorney, the other side will ask the questions. The service member being deposed will be placed under oath, just like they would be in court.
The questions will relate to this case: what do you know, what are you asking for, etc. If the service member has an attorney, that attorney will be with the service member for the deposition. If the deposition is going to be the service member’s testimony in court, the service member’s attorney will have a chance to ask questions as well.
The questions and answers will be recorded by a court reporter. After the deposition is over, the court reporter will type out all the questions and answers. Your attorney (or you if you do not have an attorney) and the opposing attorney (or other side if they do not have an attorney) will receive copies. The original will be filed in court. If your case goes to trial, this deposition may be used in court as the service member’s testimony if they cannot appear in court in person, or by phone, video, internet or other ways.
When can a stay or expedited hearing be requested?
At any time in the proceeding.
How does a service member ask for a stay?
A service member must show that military service stops them from defending or putting on a legal case. The service member would have to be “materially affected” in the case because of their absence as a result of military service. The service member must file with the court or administrative body hearing the case:
1. A letter or other communication that explains how current military duty materially affects their ability to appear. Include a date when the service member will be available to appear
2. A letter or other communication from the service member's commanding officer explaining that the service member's current military duty prevents their appearance. The letter must also state that military leave is not authorized for the service member at the time that the letter is being written (for example, the member is in basic training).
“Other communication” could be an email or a call to the court.
How does the court/administrative agency decide?
A stay is not guaranteed. The judge or hearing officer will decide. The service member’s actions will be examined by the judge or hearing officer. Examples of questions the court may ask are:
- Is the service member eligible for leave?
- If so, have they requested leave and been denied?
It is helpful if the service member attached the request and denial of leave to their letter to the Court or administrative agency.
The Court is also likely to ask if the service member can be available by:
- Email, etc.
If so, the Court will likely decide the service member is available for purposes of the hearing.
When making a decision, the judge or hearing officer will also look to see if the service member has been acting in bad faith. For example, did service member refuse to follow a court order before being deployed and asking for a stay?
What if the request for a stay is denied?
If the court refuses to grant an additional stay of the case, the court must appoint an attorney to represent the service member in the case.
What happens if a service member does not ask for a stay?
If the service member “appears” in a legal case and does not ask for protections under the SCRA, the case will go forward just like any other case. A service member can “appear” in a case by writing (for example, signing an acknowledgement of service, or writing to the Court or administrative agency) or by showing up in person. Once a service member “appears” in a case, if he or she needs a stay, he or she must ask for it. If a stay is not requested, a court or administrative Order can be entered against the service member. So, if a service member knows about the legal case, they must be proactive in exercising their rights under the SCRA.
What happens if the service member does not “appear” in a case?
If a service member is being sued, he or she is a Defendant in a case. Normally, if a Defendant does not “appear” in the case, a default judgment can be entered against him or her. A default judgment is a court order that gives the Plaintiff (the person bringing the case) what he or she has asked for. This happens because the Defendant never responds to the legal papers that are filed in court or with the administrative agency. However, the SCRA gives some protections to service members before a default judgment can be ordered.
How to Get a Default Judgment
To get a default judgment against a service member, the plaintiff must file with the court an affidavit (written statement made under oath) that either says:
- to the plaintiff’s knowledge the defendant is not in military service and state the reasons (by including sufficient facts) why they know that
- the plaintiff does not know if the defendant is in the military
If the Plaintiff lies on the affidavit, they can be charged. Punishment can be a fine or up to one year in jail or both.
Attorney appointed when default judgment a possibility
If the Court believes the defendant is in the military and the defendant has not “appeared” in Court, the Court must appoint an attorney for the service member. The role of the attorney is limited. The attorney must try to find out if the Defendant is in the military.
The attorney should ask for a stay on behalf of the service member if:
- the attorney cannot find the service member and needs more time to do so or to figure out if there is a defense to the lawsuit
- if the attorney finds the service member and decides that there may be a defense to the lawsuit that can only be proved by the service member’s participation
If the attorney cannot find the service member, the service member will not be bound by anything the attorney does in Court.
Once the attorney requests a stay, the attorney is not required to represent the service member in the entire case. How long the attorney represents the service member is a decision for the two of them to make. The court appointment is limited to finding a service member and requesting a stay of the case.
Who pays for the attorney?
There is nothing in the Maine or federal SCRA that requires the court to pay an appointed attorney. The attorney can charge the service member. But, there are cases that say that an attorney who is representing a service member who is exercising SRCA protections during wartime should do so for free, as the attorney’s patriotic duty. Some courts in Maine may decide to have the service member fill out a fee waiver application and make a decision based on that application about whether the court will pay for the attorney that is appointed.
What happens if a default judgment is ordered?
If a default judgment is issued when the service member is in active military service or within 60 days after termination of military service, the service member can ask the Court to reopen the case if
- The service member could not make a defense because of his military service
- there is a defense to the case
The service member must ask for the case to be reopened w/in 90 days after release from the military. After that, it is too late to reopen the case.
What happens if there is a court order against a service member that he or she cannot follow because of military service?
The SCRA also allows a service member to ask that the execution of judgment against him or her be stayed. The court will decide using its discretion based upon the information the service member submits to the Court in his or her request for a stay.
- 37-B M.R.S. § 389-A
- 37-B M.R.A. § 102
- 50 U.S.C. § 501et seq
Thanks to the Tibor and Anna Doby Veteran Support Fund for supporting our efforts to educate our military servicemembers and veterans about their legal rights.