Ukraine: Stay and Remain, Part 1
The Pentagon has deployed thousands of servicemembers in response to the Russian invasion of Ukraine. Naval frigates, surveillance aircraft, artillery units and brigade combat teams are all heading out as part of the first-ever NATO Response Force.
Undoubtedly some of the servicemembers (SMs) will be involved in civil cases, administrative legal proceedings, and family law litigation. It is essential to know how to ask the court to freeze the case during a deployment (or any period in which the SM is unavailable due to assigned duties), so the status quo will remain while the SM is not available.
The ”stay” is how litigation may be suspended. The Servicemembers Civil Relief Act (SCRA), Chapter 50 of Title 50, U.S. Code, tells how to request and obtain a stay of proceedings. The court may order an automatic, mandatory stay if the four essential elements are shown. The statute requires a letter or other communication:
- with facts showing how military duties materially affect the SM’s ability to appear, and
- stating a date when he will be available.
The Act also requires a letter or other communication from the SM’s commanding officer stating that:
- the SM’s current military duty prevents his appearance, and
- military leave is not presently authorized for the SM.
50 U.S. C. § 3931(b)(2). The court may issue the stay on its own motion, and the court shall issue the stay upon application of the SM if the above four elements are shown.
No specific document is prescribed for requesting a stay. A motion or application will certainly suffice, but the request could also be in the form of a letter to the court or an affidavit.
Preparing a stay request is not ‘rocket science.” But there are two issues worth keeping in mind:
- Follow the statute. In a Kansas case, the SM was denied a stay of proceedings because he failed to provide a statement as to how his current military duties materially affected his ability to appear and when he would be available to appear. In addition, he didn’t provide a statement from his commanding officer stating that his current military duty prevented his appearance and military leave was not authorized. In re Marriage of Bradley, 137 P.3d 1030 (Kan. 2006).
- Provide persuasive details. Don’t just recite the bare elements of the statute. Be sure to fill in specifics as to duties and inability to appear or participate in the proceedings. This is also true for the commander’s communication.
The court can grant an initial 90-day stay, and it may allow an additional stay as well. 50 U.S.C. §3931(b)(1) and (d). More information will be found in “A Judge’s Guide to the Servicemembers Civil Relief Act,” at www.nclamp.gov > Publications > additional Resources.
[Part 2 of this article explains how to defend against the request for a stay of proceedings]
About the Author
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Mr. Sullivan is a retired Army Reserve JAG colonel. He practices family law in Raleigh, North Carolina and is the author of The Military Divorce Handbook (Am. Bar Assn., 3rd Ed. 2019) and many internet resources on military family law issues. A Fellow of the American Academy of Matrimonial Lawyers, Mr. Sullivan has been a board-certified specialist in family law since 1989. He works with attorneys and judges nationwide on military divorce issues and in drafting military pension division orders.Read More by Mark >