Tips for Your First Military Child Support Case

Ask Your Client

At the initial meeting regarding obtaining support from an active-duty servicemember (SM), use this list of questions (modified as necessary) as your guide:

1. What is SM’s full name?
2. Do you have a settlement or an order determining child support? If so, what is the date of the document? How much support was set?  What are the other terms?
3. Has paternity been established or determined? If so, provide all important details (e.g., court-ordered paternity testing, admission in court documents, verified pleading, etc.).
4. If the parties were married, when did they separate?  When, if applicable, did they divorce? Where was the divorce or dissolution granted?
5. What is the pay grade or rank of the SM?
6. What is SM’s Social Security Number?
7. What is SM’s branch of service (e.g., Coast Guard, Navy, Air Force)? 
8. What is SM’s location (e.g., Eglin Air Force Base, Fort Hunter Liggett, or Joint Base Lewis-McChord)?
9. What is SM’s unit (e.g., 10^th Air Support Operations Squadron, or 31^st Field Artillery Regiment)? The more detailed this information is, the better. For example, instead of 374th Airlift Wing, it would be preferable to identify the other party’s unit as “374th Medical Group, Unit 5071, Yokota Air Base.”
10. Do you have a copy of SM’s LES (Leave and Earnings Statement)?
11. What support have you received? Do you have a written history of support payments (i.e., dates of payment, amounts paid)?
12. What attempts have you made to obtain support? Do you have any evidence of those attempts?

Document Request

Documents can make the case in many child support matters.  Ask your client Jessica to produce the following (as applicable/available):

1. Child support order or separation agreement.
2. Leave and Earnings Statements (LESs).
3. Record of support payments made by the noncustodial parent/spouse/former spouse.
4. Decree of divorce or dissolution.
5. Paternity adjudication or determination documents (e.g., written acknowledgment, court order, administrative determination).
6. Military ID cards, military orders of the other party.
7. Written summary of attempts to obtain support payments, as well as supporting documents (e.g., letters, e-mails, text messages, social media messages).
8. Any other documents reflecting the SM’s income.

Formal Discovery

In many cases, your client may say she has limited access to documents or even no documents at all.  Counsel should plan on using discovery to obtain information.  This information can be used to facilitate settlement, or to prove your case to the court.  Consider the following discovery request questions in a military child support case:

Pay statements.  These are typically called Leave and Earnings Statements (LESs).  Determining how many past months of pay statements (LESs) you might need or want would depend on whether the servicemember may have been promoted recently, whether they are due an increase based upon years in service, and where he or she has been assigned over the past 6 months to 1 year. Ordinarily, pay information for the previous three months should be sufficient.

PRACTICE TIP: Obtaining a copy of the December Leave and Earnings Statement (LES) from the previous year will provided a 12-month look-back period, rather than just a current snapshot.

It is very common to have some difficulty deciphering all the information contained on the LES.  You might have additional questions about the information shown.  In order to become familiar with the LES, the abbreviations, and the contents, counsel should look up “How to Read an LES” through an internet search engine. 

• Income from all sources. We sometimes encounter servicemember’s who have side businesses or other streams of income.  Be sure to ask about all income.
• Retirees are different.  Counsel should request a retiree account statement (RAS) for retired pay.  Other pay types are common for retired servicemembers, such as a new career or job, Veteran’s Affairs (VA) disability pay, and special pay types such as combat-related special compensation (CRSC).   Again, be sure to obtain all income sources.
• Depending on what your client can tell you about the servicemember, you may want to ask a few more questions as interrogatories:
  • Do you anticipate being promoted within the next six months?
  • Do you anticipate being reassigned to another permanent duty station within the next six months? If so, to what base or location?
  • Do you anticipate being deployed to another permanent duty station?
  • [For enlisted members] When is the end of your current enlistment? Do you plan to reenlist at that time?

Nonsupport Complaint

A level of support is required by regulations of the Army, Navy, Marine Corps and Coast Guard when spouses have separated or when the parents of a child are separated (or are not married), and no court order or agreement exists for child support.  Often referred to as “interim support regulations,” the regulations are:

• Army: Army Regulation (AR) 608-99
• Navy: U.S. Department of Navy, Naval Military Personnel Manual Articles 1754-030 (Support of Family Members)
• Marine Corps: U.S. Marine Corps Order P5800.16A; Marine Corps Manual for Legal Administration, ch. 15 (Dependent Support and Paternity)
• Coast Guard: U.S. Department of Homeland Security, U.S. Coast Guard Commandant Instr. (COMDTINST) M1600.2, Article 2.E. (Support of Dependents).

PRACTICE TIP: An easy way to search for support regulations on the internet is to simply type in the number of the regulation and branch of service involved into a search engine such as Google. Typing “Army 608-99” into a search engine usually will take you to the text of AR 608-99 on a government website, for example.

You may be thinking that the servicemember is subject to rules and orders from command.  As such, surely command could simply order our servicemember Ray Jones to pay child support to Jessica, couldn’t they? While the initial enforcement for military support is the individual’s unit commander, the armed services cannot take money from Ray Jones’ pay and send it to a deserving parent. However, military regulations establish the amount of required support for a servicemember. The regulations establish a duty to pay support and allow the punishment of servicemembers who do not comply with this requirement.

Note that a nonsupport letter may move faster than a court order.  All branches of service will require servicemembers to comply with valid court orders for support.  A court order provides more protection for Jessica Jones. Child support orders have remedies such as involuntary allotment and garnishment, and represent the best way to obtain enforceable child support. If representing Jessica, counsel should always attempt to obtain a child support order at the earliest opportunity. 

When there is no order or agreement, the best course of action is to write to the commander of the SM, identify the applicant, set out the factual circumstances, describe any hardships suffered, and request regular monthly payments through an allotment.

Primary Source

The Army JAG School (i.e., the Judge Advocate General’s Legal Center and School, or TJAGLCS) publishes a series of deskbooks each year for use by judge advocates, legal assistance attorneys, and, occasionally, civilian lawyers.  Legal assistance, which involves family law, is covered in the Client Services Deskbook.  The sub-part covering spousal and child support is “DoD Family Support Policy.”  The Deskbook, which contains a summary of the support regulations of each branch of service, may be found at https://tjaglcs.army.mil/publications > Legal Assistance Deskbooks.

Determining Income

 Ray Jones’ military pay is made up of basic pay and other entitlements.  The wage paid to Ray Jones is the basic pay.  Basic pay would be subject to taxes, just like any normal payment which shows federal tax withholding, FICA, and so forth.  This is not the end of the inquiry with a servicemember.  A servicemember’s pay may include Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), special pay types for skills (such as foreign language proficiency or “jump pay” for those on airborne status, variable special pay, etc.), bonuses, and special allowances.  

To find out how much Ray Jones earns for child support purposes, review a copy of the LES.  As they say, all money is green and each of the pay types should count.  General rules on child support mean that the court should consider all pay and allowances in setting the child support obligation.

PRACTICE TIP: Pay careful attention to the allotments. An allotment should not be a true deduction from pay which reduces a servicemember’s income, such as Medicare withholding.  Allotments can be used for elective payments, such as a car payment.

Counsel must know the rules and cases in their state, as some states do not consider all pay types as income for support.

Getting Paid Via Garnishment

Garnishment of pay of active, Guard/Reserve, or retired servicemembers is authorized by federal law. To obtain a garnishment, first you need to obtain a court order directing the pay to be garnished. Second, counsel must serve a certified copy of the garnishment order via certified or registered mail, return receipt requested on the proper agent or the proper agency.  Be sure to include the full name, date of birth, and social security number of the servicemember to allow identification and processing of the garnishment.   

When considering a garnishment, be aware of the limitations on the amount of garnishment.  The maximum is fifty percent of the servicemember’s disposable pay when the servicemember is providing more than half the support for family members other than those to whom the garnishment applies.  The number goes up to sixty percent if the servicemember is not providing more than half the support to other family members.  An additional five percent can be added to the above percentages if there is an arrearage for twelve (or more) weeks.

Conclusion

While not a comprehensive overview, the above should help you along your way in your first military child support case.  These types of issues can be very complex, causing even seasoned trial attorneys to reach for the closest headache medication.  Counsel can assist clients with military child support cases with some hard “elbow grease” type work in the preparation phase.  When in doubt, please seek the assistance of a trusted professional who handles these types of matters on a regular basis, such as a former judge advocate general or an experienced military family law practitioner.