Paycheck Chronicles

Required Family Support During A Military Divorce

Divorcing a Military Member? Understand how he or she is required to support your family during the process.

In my time wandering around the internet, I come across lots of discussion and questions regarding the amount of family support that a military member is required to give their spouse and/or children during a separation or a deployment.  Obviously, this is a hot topic and there is a lot of emotion involved.  The good news is that there isn't a lot of guesswork involved:  every service has some sort of regulation that addresses this issue.  In general, service members are required to provide some support to their family.  The details vary markedly between the services, though, so be sure to get the right information for your branch.

There are a few things to keep in mind:  any court order or legal agreement will override the services guidelines.  There are extenuating circumstances that will override the guidelines.  Also, these guidelines are designed to address temporary needs while the parties pursue the appropriate legal services and come to some sort of agreement outside of the military.  These guidelines are not designed to be used as permanent requirements.

In the event of non-support, the spouse requesting support should start with the service member's commander.  If resolution is not happening at that level, then contact the local JAG office, then possibly the inspector general.  Support provided outside of a court order can not be made through garnishment - it is up to the service member to set up an allotment or provide the support directly.  The command can, however, encourage the service member to provide such support and use remedies such as officer fitreps, enlisted evals, and non-judicial and judicial punishments as appropriate.  Also, it is possible for DFAS to recoup BAH that has been paid to the service member and has not been appropriately used for support of family.  It doesn't happen often, but it is possible.

All these guidelines are designed to encourage the service member and the spouse to seek permanent court or administrative judgments on the subject of support.  The military services does not intend these guidelines to be used in place of appropriate civil judgments, but rather to bridge the time between a separation and legal action.  It is in both parties' best interest to come to an outside agreement or pursue the issue through the civil courts or administrative departments.

Air Force

I'm starting with the Air Force for two reasons:  it comes first in the alphabet, and it has the shortest (and least clear) guidelines.  Air Force Instruction 36-2906, Personal Financial Responsibility states that commanders are to "Advise members of the Air Force policy that they are expected to provide adequate financial support to family members and the procedures which the family member may implement to obtain involuntary collection of support through garnishment or statutory allotments." (Paragraph 3.2.1) It also states that military members "Will provide adequate financial support of a spouse or child or any other relative for which the member receives additional allowances for support. Members will also comply with the financial support provisions of a court order or written support agreement." (Paragraph 7.2)

The Air Force does not specify suggested amounts of support.  If a commanding officer receives a complaint of non-support, they are supposed to require the service member to prove that they are supporting their family.  The commanding officer is not permitted to define what level of support is considered adequate.

Army

Army Regulation 608-99, Family Support, Child Custody and Paternity, addresses the issue of family support.  I find this regulation to be wordy and a bit confusing.  There are some parts that are perfectly clear, however, including this (from Paragraph 1-5-b):

Soldiers are required to manage their personal affairs in a manner that does not bring discredit upon themselves or the U. S. Army. This responsibility includes— (1) Maintaining reasonable contact with family members so that their financial needs and welfare do not become official matters of concern for the Army (see para 2–1). (2) Conducting themselves in an honorable manner with regard to parental commitments and responsibilities (see chap 2). (3) Providing adequate financial support to family members (see paras 2–3 through 2–9).
There is a formula for calculating the amount of support that the Army suggests, located in paragraph 2-6.  It looks complicated, but as long as you are talking about one family unit, it isn't as hard as it looks.  It only gets complicated when there are multiple families, such as when a soldier has children from two different marriages.  The formula is based on the non-locality BAH rate, sometimes called BAH II.  These rates change each year and this link goes to the 2011 rates.

In general, if a soldier is supporting a single family, the soldier is required to either let the family live in the government provided quarters that he or she receives in lieu of BAH, or provide support in the amount of the current year's non-locality BAH rate.  (You can find the current non-locality BAH rates here.)  If there are multiple families, or if the dependents of a single family are residing in separate locations, the non-locality BAH rate is pro-rated amongst the number of eligible dependents.  For example, if a soldier has a wife and child, and the wife has moved home with her parents but the child has gone to live with the other grandparents, the soldier would provide 1/2 of the non-locality BAH rate to the wife and 1/2 to the persons caring for the child.

The North Carolina State Bar Association has an easy-to-read fact sheet about Army support guidelines.  You might find it helpful if the actual regs are hard for you to read.

Coast Guard

Coast Guard regulations regarding family support can be found in Commandant Notice 1000, Chapter 8.M, Support of Dependents.  This sentence, found in 8.M.1.a, sums it up nicely,

It should be noted that while the Coast Guard lacks the authority under federal law to compel members to support their dependents or to exercise discretion over a member's pay with the exception of garnishment orders, the obligation to support dependents is nonetheless considered binding on all members under penalty of administrative or disciplinary action, or both.

The instructions further say that, in the absence of a court order directing the amount of support to be provided, a commanding officer is to use the following formula:

Spouse Only:  BAH Difference* plus 20% of Base Pay

Spouse plus one child:  BAH Difference* plus 25% of Base Pay

Spouse plus two or more children:  BAH Difference* plus 30% of Base Pay

*For this formula, BAH Difference is defined as the difference between the With Dependents and Without Dependents rate for that service member, based upon rank and location.

Marine Corps

The Marine Corps explains the support it recommends in the Marine Corps Manual for Legal Administration, Chapter 15, Financial Support of Family Members.  The Marine Corps uses two figures to determine the minimum amount of support it suggests.  First, it takes the total number of family members (including the service member), and divides the amount of BAH/OHA by the number of family members.  It then multiplies the result by the number of family members being supported by the spouse who is seeking support from the service member.  For example, if a service member is receiving $1000 in BAH, and the spouse is seeking support for her/himself and two children, the service member would be ordered to provide $750 per month in support (3 people times 1/4 BAH each.)

 

Here's what it looks like in list form:

 

  • 1 family member:  1/2 BAH/OHA, minimum $350 each.
  • 2 family members:  1/3 BAH/OHA, minimum $286 each.
  • 3 family members:  1/4 BAH/OHA, minimum $233 each.
  • 4 family members:  1/5 BAH/OHA, minimum $200 each.
  • 5 family members:  1/6 BAH/OHA, minimum $174 each.
  • 6 or more family members:  1/7 BAH/OHA, minimum $152 each.*  For more than six family members, the BAH/OHA pro-rated shared will continue to increase, but the minimum amount does not.

Without a court order or similar administrative judgement, the amount of support shall not exceed 1/3 of the Marine's gross military pay per month.

Navy

Navy guidelines for family support can be found in the MILPERSMAN Section 1754-030, Support of Family Members.  The Navy formula is pretty simple.  You calculate the sailor's gross pay by adding the base pay and housing allowances.  Do not include Basic Allowance for Subsistence (BAS), incentive pay, sea pay, hazardous duty pay, or any other specialty pays.  Then divide the gross pay as listed below:

  • Spouse only, 1/3 gross pay
  • Spouse and one child, 1/2 gross pay
  • Spouse and two or more children, 3/5 gross pay
  • One minor child only, 1/6 gross pay
  • Two minor children only, 1/4 gross pay
  • Three minor children only, 1/3 gross pay

Let me remind y'all - I'm not a lawyer.  I've basically cut and pasted this information from the relevant service publications.  Do your own research, too!

I can not emphasize enough that these regulations and guidelines are not meant to replace the process of pursuing child and spousal support agreements through the appropriate civilian court system.  Divorce is a civilian matter, and should be handled through the civilian system.  But until you are able to process through the right system, these guidelines and regulations provide some protections.

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