This web page explains some of the rights and responsibilities of service members involved in civil litigation. For more information on the Servicemembers Civil Relief Act (50 U.S.C. section 3901 et seq.), see Related Information below.
The Servicemembers Civil Relief Act (SCRA) gives military servicemembers additional rights. This page focuses on procedural rights about defaults and stays.
A list of other significant protections under the SCRA is available on our page for volunteer attorneys who sometimes represent service members. The SCRA does not apply in criminal cases, including infractions.
See the Related Information section for more resources on this topic.
Military service members have rights under the SCRA that protect them from a default judgment being entered. Also, if a default judgment has been entered without following the SCRA, the service member can ask that the judgment be set aside. See the Default Judgments web page for more information.
Before the court can enter a default judgment in any civil case, the party starting the lawsuit and asking for the default must tell the court what they know about the defaulting party's military service status. Military service means:
50 U.S.C. 3911.
The party asking for the default must also explain the basis for their statement about the defaulting party's military status.
If the court is satisfied that the defaulting party is not in military service, the default judgment can proceed.
If the defaulting party is in military service, the court will vacate the default certificate, delay (stay) the case for 90 days and appoint a lawyer to represent the defaulting party. The lawyer will try to contact the defaulting party to determine their wishes.
If the party asking for the default does not know whether the defaulting party is in military service, the court can:
50 U.S.C. 3932.
If the defaulting party appears (for example, they file an answer), there is no default and the case can proceed even if the defaulting party is in military service.
A stay means the case is on hold. Nothing will happen in the case until the stay is lifted. A case could be stayed if the court determines the defaulting party is in military status.
A case could also be stayed whenever a service member in military status asks for a stay. The service member can ask for the stay at any point in the proceedings, even after judgment.
The stay must be for at least 90 days but could be for as long as military duty materially affects the service member's ability to appear in court. The service member must:
The motion for a stay does not submit the service member to the personal jurisdiction of the court and does not waive any defense or right that the service member may have. 50 U.S.C. 3932.
If the judge decides that military service does not materially affect the ability to appear, the case can proceed even though the service member is on active duty. But the judge must appoint a lawyer for the service member if the service member does not have one.
The law does not define "materially affect." It does not necessarily require overseas deployment, but it does require facts that show the service member would be hindered in presenting their case.
The other party has the right to oppose a motion for a stay. The judge will decide whether military service materially affects the service member's ability to appear.
A person can always represent themselves. Usually, if a person is represented by someone else, that other person must be a lawyer. A military service member can be represented by a lawyer or by someone with Power of Attorney. 50 U.S.C. section 3920.
Several Utah lawyers have volunteered to be appointed by the court to provide limited legal help to service members facing a default judgment. The judges and staff of the Utah courts thank you for your service. The scope of representation includes trying to find and contact the service member, advising them of their option to ask for a stay or waive their rights, and filing the documents necessary to exercise the option chosen. For more information and to volunteer, see our webpage on Service Member Attorney Volunteers.
For more information and to volunteer, see our webpage on Service Member Attorney Volunteers.
Service members also have rights under the Utah Service Members' Civil Relief Act (Utah Code Section 39-7-101 et seq.)
A service member can request expedited custody orders for their minor children if they are deployed. See the Motion for Temporary Order Due to Deployment web page for more information.
Who will decide your motion matters. You will follow different processes and timelines depending who decides your motion.
If you already know, scroll down to read about How to File a Motion Decided by a Judge or How to File a Motion Decided by a Commissioner. If you aren't sure, look at the caption of the complaint or petition. You can also answer the questions below.
Yes
If you have a divorce, custody, paternity, temporary separation, or protective order case, or a case about modifying an order in one of these cases, it might be heard by a commissioner. Answer the next question.
No
Your motion will be heard by a judge. Scroll down to How to File a Motion Decided by a Judge.
Yes
If your family law case (divorce, custody, paternity, temporary separation, or a protective order) was filed in Judicial Districts 1, 2, 3, and 4, then it will be decided by a Commissioner. Scroll down to How to File a Motion Decided by a Commissioner.
No
If your case was filed in another judicial district, it will be heard by a judge. Scroll down to How to File a Motion Decided by a Judge.
I don't know
If you aren’t sure where your case is filed or whether it will be heard by a judge or commissioner, find out by contacting your court.
Step 1: Fill out your paperwork and file
Start with the motion. Choose the right one for your situation from the forms section below. Here are some tips to help you with your motion:
Aftere you fill out the motion, be sure to also fill out a Notice of Hearing. You can try contacting the court to get help scheduling your hearing and filling out the Notice of Hearing.
File both the motion and the Notice of Hearing with the court.
If you do not file a Notice of Hearing, the court might not schedule your hearing. If there is no hearing scheduled, the commissioner will never read your motion.
Are you filing exhibits with your motion? If yes, read more about exhibits below.
Step 2: Serve the other parties in your case
If you know the other parties in your case agree with your motion, ask them to sign your motion and write down that they agree with what you are asking for in your motion.
If the other parties do not agree, you will need to have them served with the papers.
Step 3: Wait, respond to any other paperwork, and attend the hearing
If the other party files a Memorandum Opposing the Motion, you may file a Reply Memorandum Supporting the Motion, but only to respond to something being raised for the first time in the opposing memorandum. Choose the right one for your situation from the forms section below.
The court will schedule a hearing. Be sure to attend. See our page on Going to Court for more information.
If you need help with the order, read about orders below.
The chart below has more information about when papers should be filed. If the responding party files a counter motion, you can see more timelines below.
| Documents | Who Files | Time to File and Serve |
| Motion | Moving party | Serve at least 28 days before the hearing |
| Memorandum Opposing the Motion | Responding party | At least 14 days before the hearing |
| Reply Memorandum Supporting the Motion | Moving party | At least 7 days before the hearing |
| Counter Motion Documents | Who Files | Time to File and Serve |
| Counter Motion (must be served with Memorandum Opposing the Motion | Responding party | At least 14 days before the hearing |
| Memorandum Opposing the Counter Motion | Original moving party | At least 7 days before the hearing |
| Reply Memorandum Supporting the Counter Motion | Responding party | At least 3 business days before the hearing |
Step 1: Fill out your paperwork and file
Start with the motion. Choose the right one for your situation from the forms section below. Here are some tips to help you with your motion:
File your motion with the court.
Are you filing exhibits with your motion? If yes, read more about exhibits below.
Step 2: Serve the other parties in your case
If you know the other parties in your case agree with your motion, ask them to sign your motion and write down that they agree with what you are asking for in your motion.
If the other parties do not agree, you will need to have them served with the papers.
Step 3: Wait, respond to any other paperwork, and then file a Request to Submit for Decision and proposed order
If the other party files a Memorandum Opposing the Motion, you may file a Reply Memorandum Supporting the Motion, but only to respond to something being raised for the first time in the opposing memorandum. Choose the right one for your situation from the forms section below.
Whatever happens, make sure that you file a Request to Submit for Decision and a proposed order. The court might not decide on your motion until you file these papers. The earliest that you can file this is 14 days after you file and serve the motion. Choose the right forms for your situation from the forms section below.
The court might schedule a hearing. If they do, be sure to attend. See our page on Going to Court for more information.
The chart below has more information when papers should be filed.
| Documents | Who Files | Time to File and Serve |
| Motion | Moving party | |
| Memorandum Opposing the Motion | Responding party | Within 14 days after the the moving party files and serves the motion |
| Reply Memorandum Supporting Motion | Moving party | Within 7 days after the responding party files and serves the Memorandum Opposing the Motion |
| Request to Submit for Decision | Moving party | After the last document in this list is filed, or sooner if the responding party does not file a Memorandum Opposing the Motion. No earlier than 14 days after filing and serving the motion |
What forms you need depend on whether your case is before a commissioner or a judge.
If you aren’t sure whether your case is assigned to a judge or commissioner, find out. Call the court or look at the caption of the complaint or petition. If a commissioner's name is listed in the caption, the motion likely will be decided by a commissioner.
