GPSolo Magazine - January February 2005
Collecting from Personnel Called to Active Duty
Lawyers must address the issues concerning child support, alimony, and consumer debt raised by the increase in military deployments by Reserve and National Guard personnel since fall 2001. As of January 2004, more than 180,000 Reservists and National Guardsmen have been called to active duty. Virtually all of these servicemembers are now serving on active duty under Title 10 of the United States Code.
This article will provide an overview of the law that affects child support and alimony payments as well as consumer debt as it applies to Reserve and National Guard personnel called to active duty. The information in this article will also apply to individuals in the Inactive Reserve who may be called up. (See the sidebar “Child Support/Alimony/Military Involuntary Allotments” on page 43 for contact information to assist lawyers in helping their clients.)
When a member of the Reserves or National Guard is brought on active duty under Title 10, the individual is entitled to protections that do not apply under other circumstances. Activation raises legal issues that must be addressed, preferably before the servicemember leaves for overseas duty. The issues that may arise affect the servicemember, the member’s family, and his or her creditors.
Defense Finance and Accounting Service, Cleveland Center
The Defense Finance and Accounting Service (DFAS) in Cleveland, Ohio, handles all child support and alimony garnishments and involuntary allotments of consumer debt. The law that applies to garnishments for child support and alimony is 42 U.S.C. 659. The federal regulation, governing the procedural aspects, is 5 C.F.R. PART 581. This regulation was last updated in 1998.
DFAS also processes all applications for involuntary allotments of commercial debt (i.e., garnishments of consumer debt) owed by active duty military personnel, including Reservists and National Guard members on active duty for 180 days under Title 10 of the United States Code.
5 U.S.C. 5520a authorizes the attachment of military pay for consumer debt. The federal regulation that spells out the procedure is “Indebtedness of Military Personnel,” 32 C.F.R. PARTS 112, 113. This regulation, written in 1995, has not been updated. This is particularly important when applying the provisions of the new Servicemembers Civil Relief Act (SCRA), 50 U.S.C. App. Sections 501-593. This article will address the SCRA only as it applies to collecting judgments for consumer debt. (For a fuller discussion of SCRA, see the article on page 20 of this issue.) The SCRA replaces the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended. The DFAS regulation still refers to that statute and not the SCRA.
For an explanation of how to collect child support, alimony, or consumer debts, please see the article “Collecting Child Support from Federal Civilian Employees and Military Personnel” in the October/November 1998 issue of GP Solo and Small Firm Lawyer (www.abanet.org/genpractice/lawyer/complete/nov98burda.html).
Child Support and Alimony
This article addresses the concerns of Reserve and National Guard personnel called to active duty. Deployments do not affect active duty personnel with current support garnishments. Military Reservists and National Guard personnel, however, are in a different situation. These servicemembers fall into two categories: (1) those that have pre-existing support obligations and (2) those whose obligations occur once they are on active duty. Individuals called up from the Inactive Reserve also face similar issues because of their deployment.
Existing Support Garnishments
Reserve and National Guard members with existing support garnishments must address those orders. Military pay is often lower than the individual’s civilian pay. The support orders, however, are based on civilian pay. It is important that the member seek a modification to avoid developing a support arrearage. The member should take the following action:
(1) contact the servicemember’s child support enforcement agency;
(2) request an administrative hearing to seek a modification;
(3) submit a copy of the servicemember’s orders; and
(4) submit copies of recent military Leave and Earnings Statement (LES).
These actions help if the member has sufficient time to obtain the hearing. Because the member may have only 30 days to report for active duty, it may be difficult to obtain a hearing in that short time. Nevertheless, the member should make the request.
In some states, however, any action to modify the support order, child or alimony, must be taken through the domestic relations court that issued the order. This can take additional time.
If the member has a pending hearing, he or she may be able to ask that it be moved up. In any event, the member must notify the court or administrative agency of his or her military status. Failure to do so will only complicate matters for the servicemember.
Legal representation. The servicemember is entitled to legal representation. A member’s legal representative can be either a lawyer or an agent operating under a power of attorney. This is specifically allowed in the new SCRA, Section 109. Be advised that most judges and administrative officers will be unfamiliar with the SCRA.
The member should state the name of the person, if not a lawyer, who will represent him or her at the hearing. Attaching a copy of the power of attorney is advisable. Section 109 of the SCRA defines a servicemember’s “legal representative” as either: (1) an attorney acting on the member’s behalf or (2) an individual possessing a power of attorney.
The power of attorney should specifically cite the SCRA in order to assist the court or administrative agency in accepting the individual’s representation. Doing so will establish the statutory authority for appearing on another’s behalf.
This provision of the SCRA is contrary to most interpretations of the “unauthorized practice of law.” Including the statutory authority should help rebut this argument.
The problem, of course, arises when the member tries to do all this while preparing to deploy. The military does not give Reservists and National Guard personnel much time to get their affairs in order. Owing to large dockets, reduced finances, and limited personnel, courts and administrative agencies may be unable to respond quickly to the member’s request. However, these judicial entities are expected to expedite hearings for military personnel in support matters.
Wage withholding orders. Under federal law, all child support orders are subject to a wage withholding order. The servicemember can ask that the withholding order be transferred from his/her civilian employer to DFAS. The request is made to the support enforcement agency. Taking this action helps minimize or prevent both missed payments and the development of an arrearage.
If the member fails to take action to transfer the existing withholding order, the support agency will, eventually, send an order to DFAS for implementation. This takes time and often results in an arrearage.
Until the withholding order takes effect, the member must send all support payments directly to the state agency responsible for collecting payments. This helps the member remain current on the support payments and receive proper credit until the withholding order can take effect. Moneys sent by the member directly to the obligee are considered gifts, do not meet the support obligation, and will not prevent an arrearage.
The burden for taking this action falls on the servicemember. Failure to take any action can have an adverse effect on the member’s current and future finances. The actions described here require preparation and organization by the servicemember.
New Support Cases
The situation is different when a new case is filed against the servicemember while on active duty. The SCRA covers courts and administrative agencies at the federal, state, and local levels. The addition of administrative agencies is a new and important development. Administrative agencies include child support enforcement agencies.
Stay of proceedings under the SCRA. The SCRA provides for additional protections in actions filed against military personnel while they are on active duty, including Reservists and National Guard personnel. When a member has not made an appearance in a case, the court or administrative agency must determine the member’s military status.
There is a mandatory 90-day stay if the judge or administrative officer finds that (See Sec. 201): (1) the member must be present to raise any defenses and those cannot be raised without the member being present or (2) counsel is unable to contact the member or determine if a meritorious defense exists.
When a member has notice of the proceedings, he or she must file an application for a stay. The judge or administrative officer is required to grant any stay request filed by the member or his or her legal representative. The judge may also grant a stay on her own motion. This is also a 90-day stay.
In order to succeed, the member’s application must include a statement about how the member’s military duties materially affect his or her ability to appear. The member must include a date when he or she will be available. The member must also provide a statement from his or her commanding officer that includes: (1) information that current military duties prevent the member’s appearance and (2) military leave is not authorized for the member.
A request for a stay does not mean the member is submitting to jurisdiction of the court or agency. It also is not a waiver of any substantive or procedural defense.
The member may request an additional stay. However, if the judge or agency refuses to grant the request, an attorney must be appointed to represent the member.
There are many unanswered questions about court-appointed counsel. The SCRA does not address the following questions:
(1) Who pays the attorney?
(2) How does the attorney contact the member-client?
(3) How far do the attorney’s duties go in representing an absent client?
(4) What are the malpractice concerns the appointed attorney must consider?
Child Support Proceedings
A member must consider whether requesting a stay in a child support matter is reasonable and necessary. Most courts and administrative agencies can issue a temporary support order. This interlocutory order can continue until the member is available to appear. An interim order does not, generally, materially affect a member’s rights because it is subject to modification.
Reservists or National Guard members must also realize that their ability in obtaining any relief from attending the hearing will be decreased if they are on duty in the continental United States. Many courts and administrative agencies consider using modern technology to allow the member to “appear.” This includes e-mail and video depositions.
The Welfare Reform Act of 1996 requires the military to grant leave to members who need to appear at court or administrative hearings on support and/or paternity cases. (See DoD Directive 1327.5, Leave and Liberty, IO 4, 10 Sep. 1997.)
Of course, the judge or administrative officer can contact the member’s commanding officer for additional information.
Because most states use child support guidelines and the military pay tables are readily available, members may have a difficult time contesting the implementation of support orders, at least temporary orders.
The member may be able to obtain the initial 90-day stay but will be hard-pressed to justify an additional stay. To succeed, the member must establish that there is a “valid defense” requiring the member’s personal attendance. For example, the member may be contesting paternity, and his presence is required for the agency to conduct genetic testing.
Another example of a valid defense might arise when both parents are on active duty. For example, the custodial parent is deployed overseas and leaves the children with her parents. The grandparents seek to have the support order transferred to them as obligees. The rights of the non-custodial servicemember would be compromised if he were unable to appear at any hearing. The member could make a viable argument that his personal appearance is essential to resolve the issues.
Any divorce action started against a service-member before, during, or within 90 days after the end of military service is subject to a stay on a motion by the servicemember or the court. There must be a showing that military service materially affected the member’s ability to comply with court orders or judgments.
Owing to the stay, the divorce may be placed on hold until the member is able to appear in court. In order for the divorce to proceed, the judge must appoint an attorney to represent the member. However, the member will not be bound by any decisions made or actions taken by the appointed attorney. Therefore, it is unlikely that a divorce will be finalized until the member is able to participate.
The judge may, however, issue temporary orders for child support and, possibly, alimony. The suggestions mentioned earlier apply here.
Child support orders often require the obligor to maintain health insurance for the dependent children. When a member is called up, the private health insurance may lapse. There is an alternative. The member can enroll the children in the military health care program, TRICARE/CHAMPUS (Civilian Health and Medical Program of the Uniformed Services). The Defense Enrollment Eligibility Reporting System (DEERS) maintains information on the member and the enrollee-dependents.
The member or custodial parent must submit the child’s birth certificate, the court order determining paternity (if the parents were unmarried), and a child support order. The custodial parent takes the documents to the nearest facility issuing military ID cards. Although there is a requirement that the member sign the necessary paperwork, the government has implemented procedures to waive that signature if the member is unavailable or unreachable.
Military pay is not “garnished” to pay judgments on commercial debt. It is subject to “involuntary allotment.” Likewise, “commercial debt” is synonymous with “consumer debt.” In any event, there are many hoops creditors and their attorneys must jump through before an “involuntary allotment” will be initiated.
Judgments issued after a trial in which the servicemember fully participated are easy to enforce. The creditor need only follow the criteria for applying for the “involuntary allotment”—in triplicate.
The problems arise with default judgments. 50 U.S.C. App. §520 applies to any party in action in any court.
When a defendant fails to appear or otherwise defend, the plaintiff normally proceeds with a Motion for a Default Judgment. Section 520 requires that the plaintiff include an affidavit attesting to the defendant’s military status. The plaintiff’s affidavit must state whether there is any evidence that the defendant is in the military.
The affidavit may also state that the member is not in the military or that the plaintiff cannot determine the defendant’s military status. Simply checking a box on a pre-printed affidavit is insufficient. The affidavit must include facts sufficient to show what steps the plaintiff took to determine the defendant’s military status.
Creditors are advised to review the initial paperwork that gave rise to the debt. Some plaintiffs deny the member is in the military and on active duty when the underlying contract shows the opposite.
A person who knowingly makes a false affidavit or submits other false verification documents shall be fined up to $100,000 or imprisoned for up to one year.
When a judge determines that the defendant is on active military duty, a default judgment cannot be entered. The judge is required to appoint an attorney to represent the member.
The judge must grant a 90-day stay of the proceedings if there may be a meritorious defense or the member’s legal representative cannot contact the member or determine if a meritorious defense exists. Remember, this can be someone with power of attorney.
When an affidavit is inconclusive, the judge may require the plaintiff to file an indemnification bond to protect the member if the default judgment is later set aside.
Default judgments that do not meet these requirements will not be enforced by the DFAS under the “involuntary allotment” process. Therefore, there is no reason to avoid complying with the law’s requirements.
The procedures for collecting support or commercial debts are straightforward and easy to follow. The problems arise when lawyers and their clients fail to fully research the laws that apply specifically to active duty military personnel. There are myriad resources available to assist lawyers and laypeople in understanding what needs to be done. Support can be garnished from a member’s pay and consumer debt can be recovered. Those seeking to enforce court orders or judgments just need to know how to do it right.
|Child Support/Alimony/Military Involuntary Allotments|
Defense Finance and Accounting Service
Defense Manpower Data Center (DMDC)
TRICARE Management Activity (TMA)
DMDC Support Office
|Legal Assistance for Military Personnel (LAMP)|
The American Bar Association has a Standing Committee on Legal Assistance for Military Personnel. Their web page (www.abanet.org/legalservices/helpreservists/home.html) includes links to state LAMP programs. This will be helpful to those servicemembers who do not have access to a legal assistance lawyer or cannot afford to hire an attorney.
The Standing Committee has also compiled extensive materials to help service-members, their families, and lawyers understand the law and determine their respective needs. This is an excellent resource for information in this area.
Joan M. Burda operates a solo practice in Lakewood, Ohio. She can be reached at firstname.lastname@example.org.