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October 24, 2022 Feature

Family Support in Military Divorce

Kaitlin Kober

In many aspects life as a military family brings about specific and complex challenges that nonmilitary families do not face. Two of the biggest challenges that military families often face is a lack of control and uncertainty as it relates to deployments, change of duty stations, and temporary duty assignments. These changes can be sudden and new locations or assignments are often unpredictable. These factors add to the challenges that already exist in a marriage and can cause military marriages to end in divorce. As with any family, when parties first separate it is often an emotionally driven situation which may cause parties to act irresponsibly when they normally would not. While civilian couples who disagree must seek the court’s intervention to determine family support, military families can rely on regulations which detail support requirements. These regulations were created to ensure that members continue to be financially responsible for their families. The regulations of the branches differ greatly. Each of the branches’ regulations also allow for deviations from the dictated amount or formula under certain circumstances, which is why it is important to review the regulations carefully when advising your client on his or her individual case and circumstances. It is important to note that these regulations are meant to be temporary in nature and only used in the absence of an agreement or court order.

Air Force

Previously the Air Force family support regulations required members to “provide adequate financial support to family members” with no definition, instruction, or description as to what was adequate financial support. Recently, considerable revisions were made to AFI 36-2906 to give Air Force members guidance and clarification as to the family support that is required of them. The Air Force now uses a pro-rata share formula when the member is receiving additional allowances for support of his or her dependents. The support is based upon the basic housing allowance (BAH) with Dependents, without the locality adjustment which is based upon the member’s duty station. The numerator is 1 and the denominator is the total number of supported family members, the denominator does not include the military member. This fraction is then multiplied by the BAH as explained above.

The pro-rata share results in each family member receiving a fraction based upon the number of family members. For example, if the family is made up of only the member and the spouse, the spouse is entitled to 1/1 of the BAH. If the family is made up of the member, spouse and three children, each member is entitled to ¼ of the BAH. Now, if in that family one child lives with the member and two children live with the spouse, the member would pay the Wife 1/3 of the BAH.

There is an exception in situation in which the member has a shared custody arrangement. In a shared custody arrangement the spouse still receives his or her pro-rata share. However, the share attributed to each child is shared between the spouses. The example given in the Air Force Instruction is as follows “if the spouse has custody of the children for 3 days a week, and the military member has custody 4 days a week, the military member will pay 3/7 of the non-locality BAH for each additional dependent.”


Like the Air Force, the Army also uses a pro-rata share formula to determine the family support amount. AR 608-99 requires the Soldier to pay a pro rata share of the Basic Allowance for Housing II – WITH amount. This is the BAH allowance without consideration for the geographic duty location.

AR 608-99 outlines exceptions that can reduce, or eliminate, a Soldier’s support amount. One exception that eliminates the support amount is when the soldier’s family members are residing in government family house. However, if there are family members residing in government housing and additional family members not residing in government housing, those not residing in government housing will receive their pro-rata share of the Soldier’s BAH II – WITH. The soldier may also meet his support obligation by directly paying non-government housing expenses on behalf of family members living in non-government houses. These expenses include rent, mortgage payments and essential utilities (gas, electricity, and water).

Finally, there are situations in which the commanding officer may reduce or eliminate the amount owed, though this occurs in limited situations with specific circumstances. To release a soldier from his or her support obligation, the commander must be satisfied by a preponderance of evidence that such a release is a matter of fundamental fairness. Situations which may warrant a release include when the income of the spouse exceeds the military pay of the Solider, when the solider has been a victim of substantial abuse by the spouse, if the supported family member is in jail, or if regulatory support has been provided to the spouse for 18 months.

The Army Regulations also dictates the form and timing of family support payments requiring payments to be made on the first day of the month following the month to which the financial support payment pertains. If a check or money order is mailed it should be postmarked no later than the first day of the month following the month to which the financial support payment pertains. Electronic fund transfers or allotments can also be used for payment and must be completed on or before the first day of the month following the month to which the financial support payment pertains. The Army’s family support regulations can be found at Army Regulation 608-99.

Coast Guard

The Coast Guard has a mandatory and universal interim obligation which is not based upon a pro-rata formula as used by the Air Force and the Army. The scale uses base pay and BAH difference, which is the difference between the BAH with dependents rate and the BAH without dependents rate as calculated for the member.

The Coast Guard places emphasis on the fact that the scale is the minimum level of support “expected of all members without regard to other financial obligations or other factors favorable to the spouse’s financial situation.” In fact, the regulations also state, “In many instances a member may, out of moral responsibility or mutual agreement, provide support in excess of these limits.” However, the regulations do allow for limited circumstances in which a member can seek relief from the mandatory and universal interim obligation. In relation to the support of a child there are two grounds for relief. First, when a child’s whereabouts and welfare cannot be ascertained and second, when the person requesting support does not have custody of the child. There are three grounds for relief from a member’s spousal support obligation: desertion without cause, infidelity, and spousal abuse. This policy can be found at Chapter 2.E, Support of Dependents, in the US Coast Guard Discipline and Conduct, COMDTINST M1600.2.


The Marine Corps uses a fraction of the members BAH or OHA (Overseas Housing Allowance), while also setting a minimum dollar level, to determine the amount payable per family member.

BAH that is credited to a Marine for government housing, but that is not actually paid to a Marine, is not counted in determining the share of monthly BAH/OHA per requesting family member. Additionally, the policy limits the total amount of support required such that it cannot exceed 1/3 of the Marine’s gross military pay per month.

Like other branches, the commanding officer has the ability to reduce or eliminate the financial support set forth in the chart above. However, the commanding officer must first consult with the appropriate staff judge advocate and is limited to four situations in which they may reduce or eliminate family support. First, in situations in which the gross income of the spouse exceeds the gross military pay of the Marine; second, when family support has been provided for 12 consecutive months; third, when the Marine has been the victim of substantiated abuse by their spouse; and finally, the Marine is paying regular and recurring debts or expenses of the requesting family members. It is important to note that the payment of any regular or recurring debts for requesting family members must be an expense or debt that the Marine does not benefit from the payment of. This policy can be found at Chapter 15 of the Marine Corps Manual for Legal Administration.


The Navy set their support obligation as a fraction of the members gross pay based upon the number of family members.

Spouse Only: 1/3

Spouse and 1 Minor Child: 1/2

Spouse and 2 or more children: 3/5

1 minor child: 1/6

2 minor children: 1/4

3 minor children: 1/3

The Navy includes basic pay and any basic allowance for housing (BAH) or (OHA) as “gross pay.” Any additional pay, including incentive pay, hazardous duty pay or basic allowance for subsistence (BAS) is not included as gross pay for the purposes of determining the family support obligation.

While the Navy allows the member the opportunity to request a waiver of support, such waiver can only be granted by the Director, Dependency Claims, Navy Military Pay, at DFAS. Unlike the other branches the request is not made to a commanding officer as they have no authority to reduce or waive the support requirements. Additionally, the support waiver is only in relation to support of a spouse, and not the support portion attributable to a child or children. There are three grounds available to a member when seeking a waiver of spousal support; desertion without cause, physical abuse, or infidelity of the other spouse.

The Navy’s family support policy is found at MILPERSMAN 1754-030, Chapter 15, Support of Family Members.


There are steps that a non-military spouse may take if the member is not providing family support. The first step is to contact the military spouses’ Commanding Officer. He or she is responsible for responding to a non-support complaint. In do so the Commanding Officer should evaluate whether or not the member is in compliance and advise the member they are expected to provide financial support and what amount is required under the particular branch’s regulation. If the non-support issue is not resolved with the Commanding Officer, the nonmilitary spouse can contact the Judge Advocates General’s Corps (JAG) office or, if necessary, the Inspector General. While this type of family support cannot typically be garnished, a member who fails to provide family support could be subjected to punishment under Article 92 of the Uniform Code of Military Justice.

While the family support obligations of each branch provide helpful guidance to ensure that the member continues to provide support for his or her family during separation, it is not intended to replace a court order or agreement or to act as a guideline for the courts in considering an appropriate amount of support. These obligations are meant to be a temporary solution and spouses are encouraged to obtain a court order or enter into a binding agreement to address family support upon separation and divorce.

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Kaitlin Kober is attorney at Parker Bryan Britt Tanner & Jenkins, PLLC in Raleigh, North Carolina. She focuses her practice on family law matters including all aspects of military divorce. Growing up in a military family, Kaitlin has a genuine understanding of the additional issues military families face during divorce.