Requesting a Court Delay Due to Military Service
The Servicemembers Civil Relief Act, or SCRA, is a law that protects military members by postponing or suspending certain civil obligations.
The law specifically protects active duty military members and those Reserve Component members serving on active duty on Title 10 orders.
SCRA provides that a servicemember may seek a "stay of proceedings," or delay, due to a member's temporary absence as a result of military service.
If the military member has not made a formal appearance in the proceedings, the court is directed to issue a stay of proceedings for at least 90 days if the court determines that there may be a defense to the action that cannot be presented without the appearance of the service member, or if counsel has been unable to contact the service member.
The court may extend the stay for an additional 90 days if the court concludes that the military member's ability to appear is "materially affected" by the military service. Most judges will require the service member to demonstrate good faith in seeking military leave and take other action to appear in court to minimize the delay of the proceedings.
The service member, or his/her counsel, can request a stay of proceedings from the court by providing the following information:
Statement as to how the current military duties materially effect his/her ability to appear for court
Date when the member will be available
Statement from the member's commander that the member's current military duties prevent his/her appearance and that military leave is not authorized for the member
Even if allowed, a stay may not be a wise course of action. Questions to consider include:
Is a delay necessary?
Is it possible to proceed without harm to the military member?
Will a delay lead to undue hardship?
