Child Support in the Military
An active duty military spouse can be sued for child support.
As mentioned above, SCRA doesn’t provide immunity from the responsibilities of parenthood. Like civilians, all military members have a duty to support their children and their spouses, so their pay may be garnished to insure the payment of proper support.
A military spouse can be sued for child support while he or she is in service, but this is a problematic area for many courts. On the one hand, they agree that child support and paternity actions are extremely important; on the other hand, they recognize that military parents should be present to litigate and argue the issues.
An ex-husband cannot expect an indefinite stay of proceedings here. He should be prepared to present a reasonable timetable to resolve the issues. Basically, he should provide sufficient information to allow the appropriate court to decide whether there would be prejudice either to stay the litigation or allow it to go forward. He should also provide a reasonable timetable in which he will resolve the action.
The calculation of child support involves what is called the housing allowance. The military housing allowance, now called the Basic Allowance for Housing (BAH), is nontaxable allowance paid to service members who do not live in government housing. Service members also receive a BAH if they are separated from their immediate family members. Both pay and all allowances are used to calculate child support.
The housing allowance is different for all ranks. The BAH varies with the rank or grade of the service member. Higher ranks receive a larger allowance. Also, the BAH rises if the service member has any dependents.
Let’s say, for example, that a civilian ex-wife is trying to work out child support with her ex-husband who is in the Army and maintains he cannot afford much since he gets a housing allowance.
The military has regulations establishing interim child support guidelines. These guidelines specify that the member of the military must provide support to dependent children in an amount equal to his full housing for allowance at what is called the "with dependent" rate. This information can be easily obtained.
These interim support guidelines work best as a temporary measure, until the civilian spouse can obtain a court order.
A civilian spouse can get a child support order enforced within the chain of command of the military spouse or former spouse.
The company or unit commander is responsible for the enforcement of an interim child support order, as required by military regulations, for example. After a court order is obtained, the service member’s pay can be garnished or a portion can be allotted to child support, as required in the court order.
Military pay can be garnished for certain permissible purposes, and child support is a listed permissible purpose. Other types of pay that can be garnished are military retirement pay, reserve pay, federal civilian employee pay (if the spouse is a civilian employee of the military, say).
Neither the housing allowance nor the food allowance is subject to garnishment or taxes. All other forms of active pay can be garnished, including special skills pay.
A custodial parent can also use what is called an "involuntary allotment," also called a "mandatory allotment." An involuntary allotment is a wage-withholding order that is enforceable against service members.
An allotment pays more and is easier to obtain than garnishment.
An allotment can attach basic pay and the housing allowance, which is not permitted under a garnishment, and in most cases it is easier to obtain an involuntary allotment than a garnishment.
In order to obtain an allotment, a spouse must first obtain a legal order, either from a court or an administrative agency, for child support. Then she must wait until the ex-husband has not paid child support for at least two months. Once this occurs, a spouse can obtain a court or a state IV-D agency (a public agency that enforces child support orders) to send a notice to the appropriate military branch requesting initiation of an involuntary allotment. The allotment is in the amount of the monthly support obligation.
The allotment will not enforce the payment of the arrearage. The arrearage is the trigger for seeking an allotment. To receive any arrearages, a spouse must make a specific request. There must be an order, either by a court or an administrative agency, requiring the payment of the arrearages.
Calculating child support based on military pay is different, but not complicated. It consists of basic pay, which is based upon military rank or grade, and perhaps the housing allowance (known as Basic Allowance for Housing), the food allowance (Basic Allowance for Subsistence; also called "Separate Rations"), any special skill pay (such as flight pay for pilots), and any bonuses (a re-enlistment bonus, for example). The word perhaps is used because not all service members receive a housing allowance or a special pay. A spouse should be aware that these housing allowances are tax-free, so if a state bases its child support guidelines on gross pay, a spouse should be sure to adjust the military pay upward to compensate for the missing taxes.
In a divorce, the civilian spouse should be sure to obtain copies of her military spouse’s monthly pay statements, which will have all pay and allowances itemized. The pay statements are called Leave and Earnings Statements, or LESs.
A military spouse cannot plead poverty to escape child support. He may claim that he doesn’t get any allowances, that all he gets is basic pay and cannot afford child support, that he eats in the mess hall and lives in base housing. These are factually true statements that do not tell the whole truth because all service members receive some kind of compensation for living expenses. They either get basic pay and a housing allowance and a food allowance, or they live on base and eat for free. If they live on base and use the mess hall, they’re receiving things instead of money to buy those things. Therefore, since spouse is receiving "in-kind compensation," a greater proportion of his basic pay is available for child support. Thus, he cannot get out of paying child support just because he is a low-ranking enlisted man in the Army.
Common Questions and Answers
Q. Does each branch of the military have the same interim child support guidelines?
A. No. Here is one place where the branch of the service makes a difference. Just as each state’s child support guidelines are different, each branch of the service has different interim child support guidelines. Each of the guidelines can be found in the Code of Federal Regulations. A lawyer should study them in a divorce action.
Also, a military commander has no authority to order a paternity test. A woman must obtain a court order from a civilian court in order to force a paternity test.
A child’s mother must resort to the civil court to enforce its orders. A unit commander will not get involved with a paternity test. He or she actually has no authority to enforce compliance with a court order to submit a blood sample.
Useful Online Tools
Resources & Tools
USFSPA – The Uniform Services Former Spouse Protection Act (USFSPA) recognizes the right of state courts to distribute military retired pay to a spouse or ex–spouse and provides a method of enforcing these orders through the Department of Defense. USFSPA does not make division of military pay mandatory during divorce.
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