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.
Servicemembers Civil Relief Act
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:
- active duty in the Army, Navy, Air Force, Marine Corps, or Coast Guard, or
- called to active service in the reserves or National Guard, or
- active service of a commissioned officer of the Public Health Service or National Oceanic and Atmospheric Administration.
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 lawyer cannot contact the service member, the default judgment can be entered once the stay expires or is lifted. A default judgment against service members can be vacated later.
- If the lawyer is able to communicate with the service member, the service member can decide:
- they want to waive their SCRA rights and consent to the judgment. The lawyer would file the necessary documents on behalf of the service member. The service member would no longer be in default, so the default certificate will be vacated, and a judgment by consent will be entered.
- they want to fight the case and file an answer. The default certificate would be vacated, and the case would move forward.
If the party asking for the default does not know whether the defaulting party is in military service, the court can:
- enter the default judgment and require plaintiff to post a bond to protect the defaulting party's rights or
- enter the default judgment and waive the bond.
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:
- request the stay and provide a date when they will be able to appear; and
- provide a letter from their commanding officer stating the service member's military duty prevents them from appearing and military leave is not authorized at the time of the letter.
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.
Rights Under Utah Law
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.
Will the motion be decided by a judge or commissioner?
Judges may rule on all motions in all types of cases. However, in Judicial Districts 1, 2, 3 and 4, commissioners are assigned to hear most matters in divorce cases and several other types of family law cases. Motions decided by a judge and motions decided by a commissioner follow different procedures.
If you are not 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 has been listed in the caption, the motion likely will be decided by a commissioner.
Motions decided by a judge are governed by URCP 7. A judge will not rule on a motion until the time for filing an opposition to the motion has passed and a Request to Submit for Decision has been filed.
Motions decided by a commissioner are governed by URCP 101.
See the Motions web page for information about the difference in procedures and timelines depending on who is deciding the motion.
The forms you need depend on your case. What is your case about?