Family and Real Estate Law in Orange County, CA

Articles By Steve Olear

Service Members Civil Relief Act (SCRA) 

SCRA protections are extended to all branches of the United States Armed Forces in both judicial and administrative matters. (50 U.S.C. Appen. §512)

Active duty service members are afforded protections in Family Court especially in the area of Child Support. The protections include: appointment of free legal counsel in default hearings. A default hearing occurs when the service member fails to appear at a court hearing ("court" is used here as a generic name for a wide variety of hearings whether they be judicial or administrative.) Under the SCRA, the service member is provided free legal assistance prior to the default hearing.(50 U.S.C. Appen §S21(b))  It is not uncommon for the attorney to have the default set aside and allow time for an actual hearing.

The default is established when a legitimate order is rendered and actual notice is given to the service member. If there is no legitimate order or service is defective or an acceptable excuse for the service members failure to appear, the attorney, at no cost to the service member, will do everything in her/his power to see that the service member gets his day in court.

If a default is entered against an unrepresented service member, the service member has 90 days to make a motion to the court to have the default set-aside usually good grounds exist if the service member was on duty or unavailable i.e deployed, in training and the like again, the attorney can advise and represent the service member. This is a very good deal. In Orange County, California, the pro bono attorneys are volunteers who donate their time, education and experience for and to the service member.

BEWARE! !! If the service member fails to make the request to set-aside the default judgment within 90 days, the order becomes effective. That is, an IWO (Income and Wage Order) is served on military pay master and ....the support is automatically deducted. We all know how that feels. It is imperative that court rules are followed. Ignorance of those rules is no excuse and will, in most cases, cause the service member months or years of financial grief.

A Service Member is also eligible for a reduced interest rate on arrears (i.e. unpaid child support and other debts) even if the debt is a pre-active duty obligation (50 D.S.C. Appen. §527). These matters are available only if the service member is aware of the benefit and makes an effort  (as prescribed by §527) to modify the interest obligation. These efforts can be tricky. All the more reason to seek out competent legal counsel and probably a fee will be necessary for non-child support relief.   The State of California jumped into the relief for active duty service members by instructing the Department of Child Support Service (DCSS) to work with the service member to modify the current support obligation free of charge at a DCSS service center. (California Family Code §17440). The service member should be aware there are free service available from the DCSS as they do not represent either parent, but represent the child and take the attitude of applying the law fairly to both sides in child support litigation.

BEWARE! The service member MUST be pro-active and seek relief from the courts within the time frames designated for each action. For example, no modification of child support is available until a Request for Order Re: Modification is filed. The court has the discretion to apply the modification retro actively to the first day of the month following the Request.  The old story applies snooze you lose. TALK TO AN ATTORNEY.

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