The Services Members Relief Act is a federal law enacted to give service members of the armed forces some financial relief and protections. Part is to ensure that active duty members of the armed forces are treated unfairly by the judicial system. This is something that comes up in family law cases often, especially divorce.
In this blog, we will discuss how the Service Members Relief Act relates to family law cases, and what considerations have to be made because of it. Like all of our blogs, this is intended for informational purposes only and not intended as a substitute for the advice and counsel of a family law attorney.
Service Members Relief Act Affidavit
It would be impossible (and for these purposes unnecessary), to discuss everything in this act, but for the purposes of family law, the most important point is the service members civil relief act affidavit. This is a document that has to be filed with the court in certain instances in family law cases in order to proceed.
When does the affidavit have to be filed?*
- The Plaintiff must file the affidavit in any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance. The court, before entering judgment for the plaintiff, shall require the plaintiff to file the affidavit with the court:
- Stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or
- If the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.
*It Is important to note that there are several other instances that the affidavit must be filed regarding other areas of law, but as noted above, we are only covering the family law use in this blog.
Why must I file this affidavit in a family law case?
This relates to proper service and the ability for the defendant to come to court. Here’s the most common example:
- Plaintiff wants to get a divorce, so they file a complaint at the courthouse, serve the defendant, the defendant does not file an answer within 30 days, so the defendant gets a “default judgment” divorce.
- Before the court grants this divorce, the judge wants to be sure that the reason the defendant didn’t come to court or file answer was because they chose not to and not because they are overseas fighting for our country and it was impossible for them to get notice or come to court.
*This same example would work in a child custody case as well.
How do I even know if the defendant is in active military service?
Part of the affidavit is stating that you did a search online to see if the person is on active duty. That search can be found by clicking here.
Family law can be very complicated and this requirement stemming from the Services Members Relief Act is just one of the several examples. If you are in need of assistance in a family law case, contact us. We handle family law in Charlotte, NC and the surrounding areas.