Servicemembers Civil Relief Act

[armywife]

I know you don't like wives asking questions for husbands, but since mine is deployed to Iraq, maybe you can make an exception.  If not, I understand.  

One child-14 years old-resides in Texas
Bio dad (CP) Texas
Bio mom (NCP) Arizona
Jursidiction for case is in Texas

Bio dad agreed to sign a modification of child support to lower her monthly child support payment and arrears payment.  Since NCP waited so long to pay her lawyer, modification was not completed before bio dad deployed to Iraq.  With the modification, her lawyer sent a Waiver of Service.  Within this waiver is the wording:  

"Insofar as this suit is concerned, I waive all rights, privileges, and exemptions existing or that may herafter exist in my favor under the Servicemembers Civil Relief Act, including the appointment of counsel to represent me in this case."  

There are obvious reservations about signing this.  I am trying to contact our lawyer, but I have been unsuccessful thus far.  

Do you know if this is standard language?  

Can't bio dad just sign waiver saying that he waives making testimony and being served with citation, etc. etc.?  

Thank you very much for your consideration.

[socrateaser]

>"Insofar as this suit is concerned, I waive all rights,
>privileges, and exemptions existing or that may herafter exist
>in my favor under the Servicemembers Civil Relief Act,
>including the appointment of counsel to represent me in this
>case."  
>
>There are obvious reservations about signing this.  I am
>trying to contact our lawyer, but I have been unsuccessful
>thus far.  
>
>Do you know if this is standard language?  

The language is not standard, because there is no standard. Opposing counsel is aware that as long as the father is deployed the court is barred from considering any final order until the father returns from deployment, unless the father waives his rights under the SCRA. Thus, there can be no stipuated downward modification absent some wavier of rights.

However, the text is overreaching in my opinion. There is no reason to categorically waive all rights under the act. As long as the father has signed the stipulated order, there is no reason to waive any rights, because the stipulation is not an adversarial action -- it is agreed to, so the father has impliedly waived any contest in favor of entering this particular order.

But, if he signs the waiver, then the mother can come back to court tomorrow and start a new action and the SCRA will not protect the father any longer.

This is not an area of law that I have much experience with, so I may actually be talking out my a$$ here. There may be some precedent case law that requires an all or nothing proposition with regard to the waiver, but I cannot see why this would be the case.

The court doesn't know that the father is deployed and there's no fraud on the court in not disclosing this fact, because the father wants the order entered as agreed to. It would be something else if the order was being made against the father's wishes. Then the deployment would bar the order, so not informing the court would be a fraud.

I don't see the reason to sign this waiver. I'd be very interested in your attorney's opinion and rationale if he/she belives that the waiver is necessary.


>Can't bio dad just sign waiver saying that he waives making
>testimony and being served with citation, etc. etc.?

Irrelevant.

[armywife]

Thank you very much for your response.  I will continue to try to get in touch with our lawyer.  She did leave a message stating that her first instinct is to not sign, but she needed to discuss further.  

My thought is to wait until father comes home on R & R, but bio mom is pushing hard which is affecting my stepson as he is with her for his summer break.

I will let you know what our lawyer's opinion is when I can get in touch with her.  

Again, thank you for your service.  I have learned so much by reading your board.

[armywife]

Hi,
Interesting thing just happened.  I called bio mom's attorney(paralegal actually)  who prepared the modification.  She said it was no problem to take out the language waiving his rights to the SCRA.  Hmmmmm.  Why put it in there at all then?  Sounds kind of sneaky to me.  Oh well!

Again, thanks!!!

[socrateaser]

>Hi,
>Interesting thing just happened.  I called bio mom's
>attorney(paralegal actually)  who prepared the modification.
>She said it was no problem to take out the language waiving
>his rights to the SCRA.  Hmmmmm.  Why put it in there at all
>then?  Sounds kind of sneaky to me.  Oh well!
>
>Again, thanks!!!

Yep. It was a trick to try to get you to waive all your rights under the SCRA, or maybe the attorney didn't analyze the law, and suddenly realized that the waiver wasn't necessary to proceed with the stipulated order.