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Military Divorce and Separation

Child/Spouse Support and Garnishment Issues

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Each of the military services have regulations which require members to "provide adequate support" to family members. However, here's the rub: The military has absolutely no authority (without a court order) to *force* an individual to pay such support against his/her will. If a military member fails to provide support, the military can (and does) punish an individual, but such punishment is usually covered under the Privacy Act of 1974, and the military is not allowed to discuss the punishment with anyone. Obviously, this upsets a lot of spouses who claim nonsupport, and feel that the military is not doing anything to help them. Unfortunately, the military's hands are tied by law in this area.

Exactly what constitutes "adequate support" differs from service-to-service. For example, Army Regulation 608-99, "FAMILY SUPPORT, CHILD CUSTODY, AND PATERNITY, requires a soldier to provide an amount equal to BAH Type II, at the "With Dependent Rate," at the with dependent rate, unless there is a court order or written agreement providing for a different amount. If the soldier has more than one support obligation, that amount is divided equally among the supported parties. For example, if the BAH Type II with depenent rate for a soldier's rank is $400 per month, and he separates from a wife and child, he must pay $200 per month each, unless there is a court order or written agreement stating otherwise. This is not an "absolute" requirement, however -- the regulation contains provisions which allow the commander to waive requirements in certain cases, such as when the spouse makes more money than the soldier, or the soldier is a victim of abuse, or the family member is in jail.

Air Force Instruction 36-2906, PERSONAL FINANCIAL RESPONSIBILITY, on the other hand does not specify a specific amount for "adequate support." Instead, "adequate support" is determined by the individual commander, based on the circumstances, in the absence of a written agreement or court order.

As with the other services, the Navy is reluctant to become involved with support disputes, as they feel this is a matter best resolved by the courts. However, in the event of a non-support complaint, where there is no court-ordered amount, nor written agreement, The Naval Personnel Manual (Section 1754-030) provides the following guidance to commanders for determining "adequate support:"

  • Spouse only -- 1/3 of gross pay
  • Spouse and one minor child -- 1/2 of gross pay
  • Spouse and two or more children -- 3/5 of gross pay
  • One minor child -- 1/6 of gross pay
  • Two minor children -- 1/4 of gross pay
  • Three minor children -- 1/3 of gross pay
Gross pay includes base pay and basic allowance for housing (if entitled), but does not include hazardous duty pay, sea or foreign duty pay, incentive pay, or subsistance allowance.

It bears repeating: Unless there is a garnishment or involuntary allotment order issued by a civil court, the military has no authority to force a member to pay support against their will. In other words, the commander cannot order the individual to make an allotment, nor can the commander even order the individual to pay. The commander can punish (nonjudicial punishment, reduction in rank, reprimand, denial of promotion, even discharge) a member who continually refuses to provide "adequate support," but cannot involuntarily take money away from the member and give it to the spouse/child.

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