When a soldier is given his or her deployment order, there are a numerous things to prepare and plan. The deployment order not only affects the lives of the soldiers, but also the lives of their families. There is a fear of the unknown and the vague, unmentionable “what will I do if . . .” that will not leave the back of the families’ mind until the soldier returns. In order to reduce the stress of deployment and to give soldiers and their families the assurance that some parts of their lives are under control even while the rest has been turned upside-down, certain legal rights and benefits are enacted. Understanding these rights, specifically prior to deployment, can help prevent serious financial and legal issues down the road.
One of the most important laws regarding deployed soldiers is the Servicemembers Civil Relief Act (SCRA) (50 U.S.C. App. S 501, et seq). The SCRA [used to be known as the Soldiers’ and Sailors’ Civil Relief Act (SSCRA)] laws apply to all members of the armed forces in a Title 10 Active Duty status and also the National Guardsmen called to state active duty for a national emergency. The SCRA is a federal law and most of its protections are straight forward and applied uniformly across all states, however some can get complicated due to application of state laws. For example, although child custody hearings are not exempt from the SCRA, the law is applied liberally in these cases due to the application of state law and the judge’s discretion regarding the best interest of the child.
The SCRA contains provisions pertaining to issues such as postponement or suspension of civil obligations, rental agreements, interest rates, medical and professional liability insurance, eviction and repossession protections. Additionally, the law allows the servicemember to reopen a default judgment and set it aside. These protections are not always automatic and often require some action on behalf of the service member. Some of the main provisions are discussed below.
Civil stay. If a servicemember (plaintiff or defendant) is unable to participate in a civil court proceeding due military duties, the court is required to provide at least a 90-day stay if a stay is requested. Longer stays may be granted at the discretion of the judge. This provision also includes “administrative proceedings,” which will impact issues such as child support modification hearings. If a soldier or his/her attorney does not appear at a hearing, before entry of a default judgment, the other party is obligated to file an affidavit stating whether or not the individual is in the military. If so, the court is required to appoint an attorney to protect the soldier’s interests. The court is also empowered to protect the individual’s SCRA rights, as they deem necessary. These protections generally terminate approximately 30 to 90 days after date of discharge from active duty, but it can be longer.
Rental property protections. The SCRA prohibits evictions of servicemembers or their dependents from their residence where monthly rent does not exceed $2,400, without authorization from a court. The court is required to stay the eviction action for 90 days upon application by the servicemember unless the court finds the servicemember’s ability to pay has not been adversely affected, or it may “make such other order as may be just.” Self-help eviction is punishable by fine, imprisonment, or both. Additionally, under the federal laws, the “military clause” allows soldiers to terminate their lease upon receipt of active duty or deployment orders of more than 180 days.
Interest rate reductions. If a servicemember’s ability to pay pre-service debts is adversely affected by his military service (i.e., he now makes less money), he is entitled to a reduction to 6 percent interest on those debts. The interest is to be forgiven, not deferred. To get the reduction, the servicemember needs to notify the creditor in writing and provide a copy of the active duty orders. The burden is on the creditor to prove that the ability to pay is not adversely affected.
Insurance. Another provision in the SCRA provides for suspension and subsequent reinstatement of health care professional and legal professional liability insurance when an individual is called to active duty. The individual must request the suspension and the reinstatement in writing. The SCRA also entitles an individual to immediate reinstatement of privately purchased (not employer-offered) medical insurance that was in effect the day before the individual went on active duty. The individual or those covered by the insurance may not be excluded or subjected to a waiting period before reinstatement for conditions arising before or during the active duty.
Automobiles. The SCRA also includes a provision allowing for termination of automobile leases if the servicemember is transferred overseas or called to active duty for at least 180 days. Furthermore, self-help repossessions of automobiles or other installment contract purchases are punishable by fine or imprisonment, similarl to the eviction protections.
This is only a brief overview of the most widely used provisions of the SCRA. The SCRA also includes provisions pertaining to income tax, residency, reopening judgments, and life insurance, among other subjects. Any time a mobilized soldier has legal issues, one should take a quick look at the SCRA to determine if any of its provisions may apply.
Another important law regarding deployed soldiers is The Uniformed Services Employment and Reemployment Rights Act (USERRA) (43 U.S.C. s. 4317 et seq.). Protections offered under USERRA are applicable after servicemembers return from duty. USERRA provides reemployment protection and other benefits for veterans and employees who perform military service. Also, it includes provision regarding employer-offered health plans which are similar to the privately purchased health plans under USERRA.
There are a few legal documents which can help servicemembers and their families a great deal during the deployment. Servicemembers should consider whether they will need to execute a power of attorney to help others manage their affairs in their absence. Another legal document to consider would be gardianship, which permits a grandparent or other temporary custodian to take parental-type actions with regard to a child of a soldier. These actions might include authorizing medical care, traveling with the child, signing permission slips, or even enrolling the child in a new school. Such guardianship documents act as a permission slip and do not take away any parental rights or responsibilities from the soldier. However, there may be school districts that will accept nothing less than a legal guardianship document from a court, therefore prior planning between the parent and the school district is very important.
Servicemembers should also update their will and include a reference to their military service so an executor will know to contact the military to find out about possible benefits to the estate or surviving family members. In conjunction with their will, soldiers should update their civilian and military insurance designations.
Veteran & Military Sections of State Bar Associations
Many state bar associations have a veteran & military committees that offers a network of state attorneys willing to provide free or reduced-price services to servicemembers and their families. These services can range from document preparation to in-court representation.
Disclaimer: This post is meant for general informational purposes only, and it is not to be construed as legal advice. As with any laws, the information in this blog post may change at any time and may apply differently in different jurisdictions. The post may constitute Attorney Advertising as defined by the rules of professional responsibility of some jurisdictions. Holborn Law is based in Orange County and Riverside. The attorneys of Holborn Law APC are active members of the State Bar of California and licensed to practice law in California. All services relating to immigration and naturalization provided by Holborn Law APC are provided by active members of the State Bar of California or by a person under the supervision of an active member of the State Bar of California.