Do Not Forget the Servicemembers Affidavit!

Following a North Carolina Supreme Court case which remanded a Family Court Judge for not postponing trial while a party was on active US military duty and deployed overseas, many North Carolina Family Courts now require the filing of a Servicemembers Affidavit for any lawsuit.

The Servicemembers Civil Relief Act (SCRA) is a federal law which protects servicemembers legal rights during active duty. The SCRA applies to members of the Army, Navy, Air Force, Marine Corps, and National Guard on active duty, along with officers of the Public Health Service and National Oceanic and Atmospheric Administration (NOAA) on active service. The SCRA protects servicemembers from civil liability while they are not able to defendant themselves due to being on active duty. The North Carolina Administrative Office of the Courts developed a form (AOC-G-250) which can be used by to comply with the SCRA and requires a search of a federal website to determine whether an opposing party is an active servicemember. This Form can be found at the following link: http://www.nccourts.org/Forms/Documents/1664.pdf.

If a servicemember is on active duty, the Court may not enter any Order until the Court appoints an attorney to represent the servicemember. If a party is on active duty, in most instances the case will be stayed or postponed, until a later date. This protections ensure that Orders are not entered as against servicemembers who cannot appear due to their military duties.

If you are filing a new lawsuit in North Carolina, make sure to always complete and file an SCRA Affidavit when you institute your action. We regularly see actions for Divorce that are denied by the Court because a SCRA Affidavit was not filed.

If you have any questions about the Servicemembers Civil Relief Act or you obligations as a litigant under the Act, please contact us at (704) 810-1400 to schedule a consultation with one of our North Carolina Licensed Attorneys.

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