Spousal Support in the Military
Key Points
  • Military spouses are just as responsible for spousal support as civilian spouses. Military service is not a reason to not pay spousal support.
  • The military cannot force a military member to pay spousal support unless there is a court order.
  • The determination for spousal support is based on the basic allowance for housing at the "dependent rate".
  • Any forms of pay the military member receives, except housing and follow allowances, is subject to garnishment, this includes any special skills pay.

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 a defense from being mounted. 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 or her full housing for allowance at what is called the "with dependent" rate.

Let's say a civilian spouse is trying negotiate support from an ex-spouse who is in the Army and argues that he or she can't afford a lot since a housing allowance is received. The civilian spouse can argue the 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 he or 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 or her dependents - the spouse and children. Depending upon the jurisdiction of the divorce, the former spouse must then request that an allotment be made against his or 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.

Useful Online Tools
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Suggested Reading
Divorce & the Military II Divorce & the Military II
DIVORCE AND THE MILITARY II is the newly published comprehensive guide for military members (active duty, reserve/guard, and retired), spouses, and their attorneys, on the Uniformed Services Former SpousesŐ Protection Act (USFSPA). The USFSPA is the federal law that permits the award of military retired pay in a divorce.

Author: Marsha L. Thole and Frank W. Ault

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CHILD SUPPORT -- All military members must provide support for their children, as well as their spouses, so their wages may be garnished in order to ensure the proper payment. Child support may not exceed 60% of a military member’s pay and allowances.
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