The West Virginia military affidavit

How West Virginia handles it

West Virginia buries the military question at item 6 of a six-item form. SCA-M429, Affidavit: Default Judgment, is headed with its authority: W. Va. Code § 50-4-10 and Magistrate Court Civil Rule 10. Items 1 through 3 cover the plaintiff's identity, the service date, and the defendant's failure to respond. Item 4 is the damages election. Item 5 asks whether the defendant is an incompetent person, infant, or incarcerated convict. Item 6 asks for military status with three options: (a) "I have determined that the defendant is not in the military service based on the following facts," (b) "I am not able to determine whether or not the defendant is in the military service," or (c) "The defendant is in military service."

Only option (a) has a place to write. The form gives you blank lines under (a) and nothing under (b) or (c), so a plaintiff who cannot rule out service ends up with a form that says nothing about what was tried. That is the opposite of what the federal unable-to-determine prong expects, and it is why the accompanying instructions carry more weight in West Virginia than the form does.

The court's information sheet, SCA-MI 402NP, spells out the consequence. If you mark (b) or (c), federal law "does not permit a court to render a default judgment in this case unless you present evidence that the defendant is not in military service or unless you seek the appointment of an attorney to protect the defendant's interest." Appointment is not automatic. To start it you file a separate form, the Notice: Request for Appointment of Counsel, SCA-M420NP. And there is a deadline built into inactivity: "If you do not request that an attorney be appointed or if you do not submit evidence that the defendant is not in the military and if you case is not active for more than 6 months, then your case will be dismissed," with new filing fees to refile.

The state statute says the same thing in stronger terms. W. Va. Code § 50-4-10(a)(2)(B) provides that no judgment by default may be rendered against a person in active military service who has not appeared "unless the provisions of 50 App. U.S.C. § 520 have been followed, including the appointment of an attorney upon motion of a plaintiff." Subsection (b) gives an ordinary defendant twenty days after judgment to move to set it aside, but gives a person in the military service the time provided by the federal act instead, and lets the magistrate set the judgment aside for good cause and set the matter for trial.

West Virginia also has its own act, and it covers people the DMDC database does not. W. Va. Code § 15-1F-11, the West Virginia Servicemembers Civil Relief Act, gives a West Virginia National Guard member called to state active duty by the Governor for thirty days or more "all of the protections, rights or benefits that are afforded and may accrue to a person on federal active duty" under the federal act. Guard members on a governor's order do not appear in a federal status report, so a clean DMDC result is not the end of the inquiry for a West Virginia defendant.

What trips filers up here

• The form and its instruction sheet still cite 50 App. U.S.C. § 520, the pre-2015 codification. The current section is 50 U.S.C. § 3931. The form was last revised 10/01/1996 and the information sheet in 06/1999.
• Item 6 gives you a facts field only if you are saying the defendant is not serving. Choosing (b) or (c) leaves the form silent and pushes the work into a separate filing.
• The appointment of counsel is on the plaintiff's motion in West Virginia. Nobody appoints for you, and until someone does the judgment cannot enter.
• Six months of inactivity kills the case. The real cost of an unresolved military status is dismissal plus a second filing fee.

Signing it: notarization required

The jurat reads "Taken, subscribed, and sworn or affirmed before me this ___ day of ___," with a commission expiration line and a signature line labeled Notary Public/Magistrate Assistant/Magistrate Clerk. A magistrate assistant or magistrate clerk can swear you in at the counter, so a separate notary visit is not required.

This form carries a notary block, so budget for a notary before your filing date. Federal law sets a floor, not a ceiling: 50 U.S.C. § 3931(b)(4) permits an unsworn declaration under penalty of perjury, but a state is free to require more on its own form, and this one does.

West Virginia law on top of the federal rule

W. Va. Code § 15-1F-11: The West Virginia Servicemembers Civil Relief Act gives a West Virginia National Guard member called to state active duty by the Governor for thirty days or more all the protections of the federal act. State orders do not show in a federal status report, so a DMDC result alone does not answer the question for a West Virginia defendant.

Getting the military-status answer right

The affidavit is only as good as the search behind it. The Defense Manpower Data Center runs the free lookup that courts and creditors rely on, and since 2026 it requires a free account even for a single record. Our guide to the DMDC SCRA website covers the search itself, what a "no information found" result does and does not prove, and the batch route for high-volume filers. The federal rules behind this form, including what happens when you genuinely cannot determine status, sit on the hub page.

If one was filed against you

A false affidavit is not a technicality. In May 2026 the Justice Department settled with a Florida property manager that swore a Navy sailor was not on active duty, took a default eviction judgment, and left him with an eviction on his record that a dozen landlords then refused to rent around: $60,000 to one servicemember plus a civil penalty . If a default judgment was entered against you while you were serving, it can be reopened; the default-judgment shield walks the deadlines.

Serving in West Virginia and looking for what the state adds to your own protections rather than court procedure? That is a different page: West Virginia SCRA benefits.