Child Support Obligations During Active Military Service
The Servicemembers Civil Relief Act (SCRA), 50 U.S.C. app §§ 501 et seq., is a federal law that was passed by Congress to provide protection for individuals entering or called to active duty in the military service. It is intended to postpone or suspend certain civil obligations that the service member entered into before entry onto active duty. This is intended to enable service members to devote full attention to their military duty.
The protection begins on the date the individual enters active duty and terminates within 90 to 180 days after the date of discharge from active duty.
The SCRA applies to “all civil actions,” which includes family law matters. There are several provisions that protect service members who have child support obligations.
Stay of Proceedings
At any time before judgment in a civil action, a person covered by the SCRA who has received notice of a proceeding may ask the court to stay the proceeding. 50 U.S.C. app §522. The court will grant the service member’s stay application and will stay the proceedings for 90 days if the application includes: 1) a letter or other communication setting forth facts demonstrating that the individual’s current military duty requirements materially affect the service member’s ability to appear, along with a date when the service member will be able to appear; and 2) a letter or other communication from the service member’s commanding officer stating that the service member’s current military duty prevents his or her appearance and that military leave is not authorized for the service member at the time of the letter.
Additional stays beyond an initial 90-day stay may be granted at the discretion of the court.
Stay of Execution of a Judgment
A service member can request that the court stay the execution of a judgment, attachment, or garnishment order. 50 U.S.C. app §524. The service member must show that military service prevented them from complying with the judgment. The stay of execution may be ordered for any part of the service member’s military service plus 90 days after discharge from active duty.
Expedited Modification of Support
Mobilization of reservists and National Guard members to full-time military status may result in a reduction of these individuals’ total monthly income. Because of this, either the custodial or the non-custodial parent may request that the local child support agency, or LCSA (in San Diego, this is DCSS) review their current support order if they are called to active duty. Within five business days of receiving the request, DCSS will review the case, and if appropriate, file a motion with the court to modify the spousal or child support order. If possible, the court will schedule a hearing on the matter before the service member deploys. If this is not possible, the service member has 90 days after returning from deployment to request a retroactive modification of spousal or child support.
Under the SCRA, a service member may obtain a reduced interest rate on debts incurred prior to his or her entry onto active duty, and this applies to judgments of child support arrears. U.S.C. app §527 sets a maximum interest rate of six percent (6%) while the service member is on active duty. The service member must show that his or her activation to military service has had a material effect on their ability to pay the usual interest rate of ten percent (10%). If the order is being enforced by an LCSA, the service member can apply for an interest rate reduction through the LCSA.
The SCRA provides important protections for mobilized service members that allow them to focus on their military duties. This in turn strengthens our national defense. To ensure you are getting all the protections you are entitled to as a military member, Contact Us today for a free 30-minute consultation.
Written by Jeanne Murray
Attorney Jeffrey P. Mach, Jr. is a Certified Family Law Specialist in the state of California. Mr. Mach is not a specialist in any other state.
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