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Because of the possibility for these separations and the armed services’ concern that family members continue to receive adequate financial support, each branch of the armed services has implemented policies to ensure that geographically separated family members receive financial support from servicemember–spouses. Furthermore, each branch has enacted its own regulation governing whether-and to what extent servicemembers must provide financial support to family members.
Each branch of the armed services defines “family members” differently. According to the Army, “family members” include, but are not limited to, current spouses, minor children of the current marriage, children by any former marriage if the soldier has a current legal support obligation (i.e., a court order), and minor children born out of wedlock to female as well as to male soldiers if paternity has been established. The Marine Corps defines “family members” as spouse, minor biological children, and minor adopted children. The Coast Guard uses the term to refer to the current spouse or biological children of the servicemember. Air Force and Navy regulations, on the other hand, do not define family members.
Regarding children born out of wedlock, the Army regulation provides that soldiers owe financial support only when paternity has been established. The Army notes, for example, that any document equivalent to a court order under state law—such as a paternity affidavit or the soldier’s consent to be named as the father on a birth certificate—equates to a court order. The Marine Corps requires support for children born out of wedlock when a court or administrative order establishes paternity or when the Marine acknowledges paternity in writing.
Each branch of the armed services requires its members to provide adequate support to family members in the absence of a court order or written agreement. The service regulations express a clear preference that court orders or written agreements for support should govern financial support obligations. For instance, the Army includes in its definition orders that state child support enforcement agencies (CSEAs) issue, as well as foreign court orders (in certain limited circumstances). Moreover, the Army, Navy, Marine Corps, and Coast Guard provide that commanders will intervene when spouses have written support agreements.
Assuming that no agreement or court order for support exists, each of the service regulations, except for the Air Force’s, establishes “interim support” requirements. These serve as a “safety net” for family members until they reach an agreement or obtain a court order; interim support is not intended to define permanently a service member’s support obligations.
The Air Force policy provides that members “are expected to provide adequate financial support.” The Air Force establishes no minimum level of support. Of the five branches, the Air Force policy is by far the most “hands-off.” Critics of the Air Force, however, should note that such a policy creates the impetus for families and servicemembers to reach agreement in writing or to obtain court-ordered support.
As the Army regulation makes clear, interim support is not meant to determine permanent family support; instead, such measures provide a minimum of support determined to be adequate until execution of a written agreement or entry of a court order. Moreover, as Army, Navy, and Marine Corps regulations indicate, interim support is not intended to guide courts or state CSEAs in determining support orders.
For the Army, interim support corresponds to the housing allowance the Defense Finance and Accounting Service (DFAS) establishes for members of each pay grade (or rank). DFAS, responsible for establishing payment procedures for all members of the armed forces, publishes in January of each year a schedule of nontaxable housing allowances that eligible servicemembers may receive to supplement military basic pay. For calendar year 2005, the BAH-II for an Army private first class (PFC) who has dependent family members is $504.60 per month. Conversely, the BAH-II for a brigadier general is $1,349.70 per month. The Army uses this Basic Allowance for Housing-II (or BAH-II) as the interim or “fall back” support for family members in the absence of a court order or agreement for support.
The Marine Corps regulation establishes a “support scale,” by which family members receive the greater of a preestablished dollar limit or a fraction of the Marine’s basic allowance for housing each month. For instance, the Marine Corps regulation provides that a Marine with one family member must pay the greater of $350 per month or one-half of his or her monthly housing allowance. A Marine with three family members must provide each with the greater of $233 per month or a one-quarter share of his or her housing allowance each month.
Similar to the Marine Corps, the Navy establishes a support scale by which Navy members are expected to pay their spouses a fractional share of the member’s monthly gross pay. The Navy defines “gross pay” as the member’s basic pay and housing allowance. A member with a spouse is encouraged to pay an amount equal to one-third of the member’s monthly gross pay. A member with a spouse and two or more children is encouraged to pay a monthly amount equal to 60 percent of the member’s gross pay. Finally, the Coast Guard support scale provides a monthly percentage of the member’s basic pay plus housing allowance.
Military authorities obviously have no authority to release servicemembers from the duty to comply with valid court orders for support or written support agreements. However, where a member must provide support according to interim support requirements, military commanders may grant some relief from regulatory requirements. Four of the most commonly used “relief” provisions relate to situations in which the civilian spouse’s gross monthly income exceeds that of the servicemember; the member has faithfully made payments in accordance with regulations for a significant period of time; the servicemember makes other payments on behalf of the family member; and the family member has committed an act of abuse against the servicemember.
When the civilian spouse actually makes more money each month than the servicemember, a release from the obligation to support the spouse may be appropriate (but not for children who are in the custody of the spouse). Army and Marine Corps regulations allow certain military commanders to release members from the interim support obligation when a spouse’s monthly gross pay exceeds that of the member.
Often servicemembers live separate and apart from their supported family members voluntarily for significant periods of time. In some situations, the member and spouse fail to initiate or to complete divorce proceedings. If this type of situation exists for a year or more, it may be appropriate to relieve the servicemember of the obligation to support the spouse, but not from the obligation to support the member’s children. Army regulation permits commanders, on a case-by-case basis, to relieve a soldier of a duty to support his or her spouse after 18 consecutive months of support. Marine regulation provides the same authority after 12 consecutive months.
Moreover, in many instances, the servicemember pays the rent or mortgage of the civilian home in which family members reside. The Army credits these payments against the soldier’s monthly support obligation, provided family members live in the residence and the soldier is legally obligated (by way of a mortgage or rental agreement). The Marine regulation provides commanders with discretion to credit payment of “regular and recurring obligations,” such as rent or consumer debts, against the Marine’s monthly interim support obligation. Finally, when the family member has committed abuse against the servicemember, both Army and Marine regulations permit commanders to relieve the servicemember of obligations to support that family member.
The strong preference of the armed services is that servicemembers and their families agree in writing to monthly support or obtain court orders for support. If, however, no court order or agreement exists and the member fails to comply with service regulations governing interim as opposed to court-ordered support, what remedies are available to family members?
Family members should contact the nearest military base’s legal assistance office for advice on how to proceed against the servicemember. This need not be the same branch of service as that of the military member involved. Often correspondence from the family member or his or her legal representative directly to the servicemember’s commanding officer is effective. In many instances, commanders are unaware of the problem. In response to these communications, commanders often will order the servicemembers to comply with regulations and establish a schedule or timeline for compliance. No service regulation provides a mechanism by which to force the servicemember to pay arrearages for past-due payments: family members can expect only prospective enforcement of the interim support requirements from the time a commander receives a complaint.
The different service regulations provide for a host of possible sanctions against servicemembers who fail to comply with interim support requirements. These range from reprimands (which may become part of the member’s permanent service record) to nonjudicial punishment (such as forfeiture of pay directly to the federal government) to criminal prosecution. However, regulations do not provide mechanisms by which family members may garnish wages to pay interim support. Garnishments and involuntary allotments of the servicemember’s wages are, however, viable options when a member fails to comply with court-ordered payments.
A spouse or former spouse who has not received court-ordered payments for child support, alimony or, in certain cases, attorney’s fees and court costs, might opt to garnish the member’s wages. Garnishment from 50 to 65 percent of the member’s basic pay and certain other types of pay, such as bonuses, is effected by applying for garnishment through DFAS. DFAS requires a garnishment order issued by a court with jurisdiction over the servicemember and a copy of the underlying order for support. See the DFAS Web site, www.dod.mil/dfas, for specific garnishment procedures.
Involuntary allotment is a second method for collecting court-ordered payments that are at least two months in arrears. DFAS must receive the order for support issued by a court or state CSEA, plus proof that the servicemember is at least two months in arrears. The involuntary allotment process permits DFAS to withhold from the member’s paycheck from 50 to 65 percent of his or her basic and special pay. However, unlike the garnishment process, involuntary allotments apply to certain members’ housing and subsistence allowances. The involuntary allotment process permits family members to reach a larger percentage of the service member’s disposable pay. See the DFAS Web site for instructions on initiating involuntary allotments.
Family support remains a concern of the armed forces. Although all branches of the service prefer that servicemembers and their families reach voluntary agreements or obtain court orders governing support obligations, all services do establish interim support obligations. Family members have a variety of options at their disposal—from contact with the military chain of command to working with DFAS—to enforce valid support obligations.
Major John P. Jurden is a professor of administrative and civil law at The U.S. Army Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
Published in Family Advocate, Volume 28, No. 2, Fall 2005. © 2005 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.