Service members going through a divorce have to consider many financial issues, including determining how much child and spousal support they will be paying each month. In addition to State law, military regulations also set standards for the financial support of dependents during and after divorce. It is important to understand when these regulations apply and the requirements you must meet.
“Financial support” refers to required support payments for service member dependents, aside from state law directed child support and spousal support. It is determined by a court order, written mutual agreement, or in accordance with regulations by each military branch. A service member who fails to pay these financial obligations runs the risk of being charged with committing military crimes under the Uniform Code of Military Justice (UCMJ).
Support During Separation
Upon separation from a spouse, a service member may be required to pay financial support for the spouse and children, depending on the circumstances. Separation is generally determined by the date the spouse and service member cease living together or the service member is ordered away from the residence.
The rules for determining how much the service member must pay differ for each branch of the military and Coast Guard. Generally speaking, any court order setting forth financial support obligations for a service member is controlling. Absent a court order, any mutual agreement between the spouse and service member is controlling. Absent a court order and mutual agreement, the following rules determine how much financial support is due. These rules apply only if there is no valid court order or mutual agreement.
Garnishment for Child Support and Maintenance
Child support and spousal maintenance payments are controlled by state law. Military pay can be garnished for child support and maintenance. Some forms of military pay, such as Basic Allowance for Housing (BAH) and (BAS) Basic Allowance for Subsistence, are exempted from garnishment. A full list of funds exempt from garnishment is made at 5 C.F.R. §581.104. Depending on the circumstances, up to 50-60% of a service member’s disposable earnings may be garnished.
AR 608-99 does not require soldiers to support a child born out of wedlock unless the soldier either admits the child is his or a court order has determined paternity identifying the soldier as the father of the child. If the soldier admits paternity, or if paternity is established by court order, then they are expected to provide financial support for the child just like any other family member.
Understand Your Rights and Obligations
As a parent, you no doubt want to make sure you do everything necessary to take care of your children. You probably want to be fair to your ex-spouse, but still, protect yourself and your ability to take care of yourself in the future. It is important to understand your legal rights and obligations. You can best protect yourself by working with an experienced and knowledgeable divorce attorney and developing a plan of action to meet your goals.