The views expressed in the article are those of the authors and do not necessarily represent the views of the Department of Defense (DoD) or its components.
The Army provides easy access to attorneys via their legal assistance offices (LAOs) located around the world. Most installations have an office, to include overseas assignments such as USAG Wiesbaden, Vicenza, and Korea. These overseas offices can offer invaluable local knowledge regarding the laws of the host nation, as well as provide basic services such as estate planning, notarizations, and powers of attorney. Additionally, attorneys at each installation offer family law assistance, especially with regard to divorce and separation. In most separation, divorce, and child custody situations involving a soldier, the relevant and controlling Army Regulation (AR) is AR 608-99, which is titled, “Family Support, Child Custody, and Parentage.” The primary goal of this regulation is to prescribe Army policy on financial support of family members, child custody and visitation, parentage, and related matters. Anyone with questions regarding a soldier’s financial obligation toward family members should first consult AR 608-99.
Who Is Eligible for Services?
Eligible clients include Soldiers, Officers, Dependents, and Retirees. All active-duty military personnel or activated reservists and guardsmen from any Department of Defense branch (i.e. Air Force and Navy) may utilize an Army LAO. Unfortunately, veterans presenting a 100% disabled ID card are not eligible to receive services as they are not retirees under Army Regulation (AR) 27-3, para. 2-4(b). Each military branch has their own regulations, so we recommend you obtain services from your corresponding branch. Be sure to bring your military, dependent, or retiree ID card as services will not be provided unless your eligibility can be established.
Family Law Services Provided
Army LAOs are required under Army Regulation (AR) 27-3, para. 3-5a to provide legal guidance in “marriage, annulment, legal separation, divorce, financial nonsupport, child custody and visitation, paternity cases, and in determining adequate family care plans (FCPs).” Optional assistance includes the drafting and review of separation agreements and property settlement agreements. These optional services are only authorized when attorneys in the office possess the appropriate expertise. Please check with your local LAO to determine if they offer optional services.
Limitations on Services
Each LAO may limit the availability of services when space, facilities, or personnel are not available. Certain offices may also limit those eligible to receive services, such as retirees or their dependents, if the office does not have the capacity to serve those populations. Additionally, please be aware that conflicts of interest can arise, especially at smaller installations. If one party in the dispute has already utilized the services of the legal office, you may be asked to go to a different LAO. Finally, LAO attorneys will typically not provide in court representation. However, some exceptions may be granted. These cases would only be approved if there was a substantial financial hardship or it is in the best interest of the military, and the servicing attorney is permitted to practice in the state.
Family law services at individual offices may vary, however some key basics remain. Typically, offices at larger installations will offer a “family law day” where there will be a brief by an attorney regarding frequently asked family law questions for walk-in clients. Following the brief, those clients have the opportunity to meet with an attorney to discuss their specific issues and schedule future appointments with an attorney, if needed. Smaller installations may have an appointment-only system. Additionally, larger installation offices, such as Fort Bragg, may offer a monthly “pro se divorce clinic.” At the clinic, eligible clients can get assistance with completing the paperwork required to file for divorce. This invaluable service gives clients peace of mind while also saving them time and money.
Domestic Violence and/or Sexual Assault Situations
One key area your LAO can assist with is when there is domestic violence type incident. Attorneys can direct you to a Special Victim Counsel (SVC) or Family Advocacy Program (FAP) representative to receive services, which can take the form of requesting a Military Protective Order (MPO) or civilian restraining order against the aggressor. SVCs “provide legal representation to eligible clients who report they are victims of sex-related offense.” Additionally, they provide representation for victims of domestic violence that involve aggravated assault, strangulation, or suffocation. Legal assistance attorneys are often part-time SVCs or work closely with SVCs to ensure any legal assistance required by the client is provided on a timely basis. As these clients often wish to pursue divorce or separation, it is vital to either speak with your SVC about those issues, or ask to obtain representation from a legal assistance attorney. Furthermore, legal assistance attorneys will also work with representatives from FAP at Army Community Services (ACS) to ensure their clients have any relevant legal questions answered.
The Legal Obligations of Soldiers
AR 608-99, Chapter 2, is often where most questions and conflicts arise with regard to family law. The regulation states “a Soldier is required to provide financial support Family members.” Soldiers are also “expected to keep reasonable contact with Family members, as well as with others who have a legitimate need to know their location.” Ultimately, the Army wants to avoid commanders getting involved with a soldier’s private family life. However, if conflicts or disagreements do arise, commanders are permitted to step in and attempt to alleviate them.
The Army wants to ensure that a Soldier takes care of their family. Under AR 608-99, a “family member” only includes: (1) a soldier’s present spouse, (2) any minor child for whom the soldier is a legal parent and whose duty to provide financial support has not been terminated, and (3) any adult for whom the soldier is a court-appointed legal guardian (e.g., a disabled or incapacitated adult child, sibling, or parent). When providing support for family members, the Army will not become involved if there is any sort of agreement or court order in place. The agreement can be as informal as a simple verbal agreement or as formal as a written, signed, and notarized separation agreement. However, if there is no agreement or court order in place regarding financial support for family members, a soldier’s commander should intervene if family members are not being provided for.
The total amount required to be paid to family members can be found on the yearly Non-Locality BAH Rates chart. More specifically, one should refer to the BAH RC/T–With Dependents column (Note: This is only applicable for family members that are civilians. If the soldier and their spouse are both active duty military, different rules apply.). Each family member is then owed their “pro-rata share.” That share is calculated using the included formula.
Let’s walk through some examples to better understand this calculation:
- A soldier is married to a civilian spouse and has no children or other supported family members. The soldier and the spouse separate, but do not divorce. They also have no financial support agreement or court order in place. The Army will require that soldier pay the full applicable BAH RC/T–With Dependents rate to the spouse.
- A soldier is married to a civilian spouse and has three children with the spouse. The soldier and the spouse separate, but do not divorce. During the separation, the spouse has full custody of two of the three children. However, one of the children continues to live with the soldier. The solider and the spouse have no financial support agreement or court order in place. Each family member is owed a pro-rata share of one-fourth of the applicable BAH RC/T–With Dependents rate. As such, the Army will require that the soldier pay three-quarters of the applicable BAH RC/T–With Dependents rate to the spouse since two of the three children are living with the spouse.
AR 608-99 is also strict about what can satisfy a soldier’s financial obligation. A soldier can pay cash to the family member (using cash, check, or electronic methods) or they can cover specific housing expenses. The only housing expenses that qualify are rent, mortgage payments and essential utilities such as gas, electricity, and water. All other expenses, including cell phone bills, car payments, and insurance payments, do not satisfy this obligation. A soldier can also mix and match housing expenses as well as cash payments in order to meet this obligation.
Enhanced Interim Financial Support
The Army recently updated AR 608-99 to include a new category of support called the “enhanced interim financial support for spouses” or EIFS. It is “designed to provide for sustenance and additional necessary expenses that initially arise when the Soldier and spouse separate, or when the time to obtain a court order is prolonged because of a lack of access to appropriate courts of competent jurisdiction.” EIFS is equivalent to 25% of the applicable BAH RC/T–With Dependents rate, and it can be a one-time or continuing payment depending on whether the spouse has access to a state court with jurisdiction.
Enforcement of the Regulation
Family members who are not receiving financial support from their soldier have a couple of options for recourse. First, they can reach out to the soldier’s commander and inform the commander that they are not receiving support. If the family member cannot contact the commander or has more concerns, they can reach out to the Army Office of the Inspector General (IG). Each installation will have their own local IG Office, which assist family members with filing a complaint. Family members should also visit their LAO for further information or assistance.
Once the commander is notified or the IG complaint has been filed, the soldier will be counseled to begin making payments. Unfortunately, financial support payments cannot be ordered to be back paid (except for EFIS). If after this counseling the soldier does not make the required payments, then the soldier can be charged under the Uniform Code of Military Justice (UCMJ).
If the soldier believes, as a matter of fundamental fairness, they should not have to pay the financial support required, they can appeal to their battalion-level commander. This commander may release a soldier from some or all of their financial support obligation. AR 608-99 gives some examples of reasons why a soldier can be released: “(1) The income of the spouse exceeds the military pay of the soldier. (2) The soldier has been the victim of substantial abuse by the spouse. (3) The supported family member is in jail. (4) Regulatory support has been provided to the spouse for 18 months. (5) A court with the jurisdiction to order financial support for the spouse has issued one or more orders, none of which contain a financial support provision. (6) The spouse has acted in a manner to cause divorce proceedings to be unreasonably prolonged.”
Civilian Referrals and the ABA Pro Bono Program
LAO attorneys may refer clients to an off post, civilian attorney when appropriate, depending on the goals and interests of the client, attorney expertise, convenience, and cost. Additionally, an attorney may collaborate with private civilian counsel in order to share military-specific expertise to maximize the benefit to the client. As clients often have legal issues in states where they previously lived, a local attorney from where the legal proceedings take place can allow for the reception of legal documents and for the client to participate remotely in any in-court matters. The LAO will be able to provide a referral list of civilian attorneys in the local area for potential clients. If attorneys at your local LAO are unable to assist you and you cannot afford a private attorney, please ask about a referral to the American Bar Association (ABA) Pro Bono Project. Any registered LAO attorney can refer active-duty military personnel facing civil legal issues, or dependents when domestic violence is present, to receive free assistance from a civilian attorney. This service is only available for E-6s and below (pending exceptions), however it could be a benefit to you if there is a civil legal issue related to your family law issues. Acceptance into the program is not guaranteed, however it only takes a short information sheet to submit.
We hope this article offered a glimpse into the services offered by Army LAOs. This article serves as only a brief overview of AR 608-99, and does not encompass the full complexity of the regulation. Please ensure you call, email, or stop by your local LAO prior to hiring a private attorney, which can often cost thousands of dollars. While not all family legal issues will qualify for assistance, the local LAO can often point you in the right direction, and, at the very least, provide you with a list of attorneys in the area that can address your needs.