Servicemembers Civil Relief Act

Servicemembers Civil Relief Act

In December 2003, the Servicemembers Civil Relief Act, 50 U.S.C. App. §§ 501-597, was signed into law, replacing and expanding the previous Soldiers and Sailors Civil Relief Act. Since 2003, the SCRA has been updated multiple times, expanding and clarifying protections.

The SCRA offers protections for service members and their families in many different areas ranging from mortgages to life insurance. It's important to get professional advice on how the SCRA applies to individual circumstances. For example, the SCRA frequently makes certain rights available conditional upon whether your ability to meet certain obligations is "materially affected" by military service. Whether you are "materially affected" can mean different things in different situations.

Because each section of the act has different guidelines, it's important to find out the specifics if you think the SCRA can help. The following is an overview of some SCRA protections:

• Reduced interest rates — Creditors must reduce the interest rate on debts to 6 percent for liabilities incurred before you entered active duty. If the debt is a mortgage, the reduced rate extends for one year after active-military service. The reduced interest rate applies to credit card debts, car loans, business obligations, some student loans and other debts, as well as fees, service charges and renewal fees. Creditors can challenge this provision if they believe your ability to pay a rate higher than 6 percent is not materially affected by your military service.
• Postponement of foreclosures — No sale, foreclosure or seizure of property for nonpayment of a preservice mortgage debt is valid if made during or within nine months after your service on active duty, unless carrying out a valid court order. This can provide tremendous protections from foreclosure in the many states permitting foreclosures to proceed without involving the courts. If you miss a mortgage payment, you should contact your legal assistance office immediately.
• Deferred income taxes — The Internal Revenue Service and state and local taxing authorities must defer your income taxes due before or during your military service if your ability to pay the income tax is materially affected by military service. No interest or penalty can be added because of this type of deferral.
• Eviction prevention — You and your family cannot be evicted for nonpayment of rent without a court order regardless of the language of your rental agreement or local laws. This protection applies to residences where the monthly rent is below a certain amount. Contact your nearest legal assistance office for the most up-to-date figures. This maximum amount is adjusted annually. If your ability or your family's ability to pay rent is materially affected by your military service, you may apply to the court, and the court must either grant a 90-day delay in eviction proceedings or adjust obligations under the lease in a way agreeable to all parties. Be sure to contact your legal assistance office if you are concerned that you or your family will be evicted.
• Protection against default judgments — If, while on active duty, a civil action, a civil proceeding or an administrative proceeding is filed against you, the judge must appoint a lawyer to represent you in your absence. The court must grant a delay, or stay, of at least 90 days if it determines there may be a defense to the action and the defense cannot be presented without your attendance.
• Postponed civil court matters — If you cannot participate in a civil court action or administrative proceeding because of your military service, you can request a 90-day delay, or stay, in the proceeding. You are automatically entitled to this delay if you follow all of the requirements. The judge, magistrate or hearing officer can grant an additional 90-day stay. Proceedings may include actions for divorce, child paternity and support cases, and foreclosure proceedings. This protection does not apply to any criminal court or criminal administrative proceedings.
• Protection for small-business owners — If you own a small business, your nonbusiness assets and military pay are protected from creditors while you are on active duty. This applies to business debts or obligations.
• Termination of residential lease agreements — You may terminate your residential lease, along with other types of leases including agricultural, professional and business, by delivering a written notice of termination. This applies if you entered into a lease and then started military service, or entered into a lease during military service and then received permanent change of station orders. It also applies when you have orders to deploy with a military unit or as an individual in support of a military operation for not less than 90 days. You must provide a written notice of termination and a copy of your military orders, hand-delivered or by return-receipt mail, to the property owner.
• Termination of automobile leases — You may terminate an automobile lease under certain specific circumstances. Here are some examples of circumstances: You signed the lease agreement before being called to active duty, signed a lease agreement and then received permanent change-of-station orders outside the continental United States, or signed a lease agreement and then received orders to deploy.
• Termination of phone service — You may request termination of cell phone service or phone exchange service if you entered a contract before receiving military orders to relocate for not less than 90 days to a location that does not support the contract.
• Prevention of repossession of property — Property cannot be repossessed for nonpayment or a contract terminated for any payment gaps prior to or during your military service without a court order.
• Life insurance coverage protection — Life insurance companies cannot terminate coverage or require payment of additional premiums if you are in military service. Increases in premiums based on age in individual term insurance is not covered by SCRA. An insurer also may not limit or restrict coverage for any activity required by military service.
• Suspension of professional liability insurance — Professionals in health care, legal services or another profession, as determined by the secretary of defense, called to active duty may suspend their professional liability insurance policy by written request to the insurance carrier. Premiums for suspended insurance do not have to be paid, and any premiums paid by an individual while on active duty must be refunded. To reinstate suspended insurance, the individual must send a request to the insurance carrier within 30 days of release from active duty.
• Voting rights in your home state — Like your tax residency, your residency for state, federal or local voting purposes is unaffected by your absence from the state due to military service. Similar protections exist for spouses.

Waivers of rights under SCRA

It is possible to waive your rights under the SCRA. Only written waivers signed during or after a service member's period of military service are effective. If you sign a waiver of your SCRA rights before you enter military service, the waiver will be considered invalid. Whether you are considering signing a waiver document at any time, either before, during or after military service, it is extremely important to read the document carefully and sign only after obtaining the advice of a qualified attorney.