Spousal Support in the Military
A military spouse on active duty can be sued for spousal support because like child support, military service does not exempt a person from spousal support.
However, support disputes between spouses may be affected by the SCRA, which protects an active duty member of the armed forces from civil suit.
SCRA may permit a service person to argue that the support action against him or her should be stayed because his or her military duties prohibit him or her from mounting a defense. As mentioned above, SCRA does not confer immunity from suits, including spousal support, but it may be used to suspend or extend time periods, or statutes of limitations affecting the civil actions. A trial court can stay (or hold off) the litigation if a spouse’s military service would have a material effect on his or her ability to defend the litigation – in this case, the spousal support action. However, as mentioned, the court can also deny relief if a spouse’s military duty has no material effect on his or her ability to defend the litigation.
Courts do not tolerate using SCRA to avoid or evade spousal support. Unless support is court ordered, however, the military does not have the ability to force a service member to pay it.
The military has spousal support guidelines. These guidelines specify that the member of the military must provide support to dependents in an amount equal to his full housing for allowance at what is called the "with dependent" rate.
Let’s say a civilian spouse is trying negotiate support from her ex-husband who is in the Army and argues that he can’t afford a lot since he gets a housing allowance. She can argue her case from the interim support guidelines, which are readily available.
Like child support guidelines, these interim support guidelines work best as a temporary measure until a spouse can obtain a court order after which she can obtain an allotment.
The Basic Allowance for Housing determines spousal support.
As described above, the military housing allowance, now called the Basic Allowance for Housing (or 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.
When a couple is not legally separated, the military spouse is required to support his dependents -- his spouse and children. Depending upon the jurisdiction of the divorce, the former spouse must then request that an allotment be made against her former spouse’s pay.
Military pay can be garnished for certain permissible purposes, and spousal 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). A civilian can get an interim spousal support order enforced against a military spouse via the company or unit commander. 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.
Neither the housing allowance nor the food allowance is subject to garnishment or taxes, for that matter, but all other forms of active pay can be garnished, including special skills pay.
A civilian spouse can use an "involuntary allotment," also called a "mandatory allotment." An involuntary allotment is a wage-withholding order that is enforceable against service members.
An allotment is can attach basic pay and the housing allowance, which cannot be done under a garnishment, and it is easier to obtain than a garnishment.
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RESIDENCY AND FILING -- Many states permit a military member or spouse to file for divorce in the state where the military member is stationed even if neither is a legal resident of the state. Military members and spouses have three choices when it comes to which state to file for divorce: 1) the state where the filing spouse resides, 2) the state where the military member is stationed, or 3) the state where the military member claims legal residency.
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Divorce & the Military II
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