Under federal law, all United States military personnel must provide child support to their children. But the laws of each state take priority over military rules. If a court order has already been established, or if both parties have entered into a written agreement on child support, both parties must comply with those agreements. If no plan for providing child support has been put in place, then the military can determine measures to take while awaiting a court order.
This obligation is separate from, and in addition to, the state-mandated obligation that each parent has a duty to financially support his or her minor children. The military financial obligation generally controls as soon as the parents separate and is applied in the absence of a formal Agreement or Court Order that establishes the applicable spousal support, if any, and child support amounts pursuant to the family laws of the appropriate state. These military imposed financial obligations differ from branch to branch.
To illustrate, the Army and Marine Corps provide specific formulas to determine a numerical amount of familial support. The manner of enforcement of the familial support regulations also differs from branch to branch. In any branch though, a service member’s Commanding Officer is not authorized to garnish wages or otherwise obtain possession of the service member’s pay to force payment to the dependent party.
However, a Commanding Officer can enforce the payment of familial support by the use of military sanctions, in the nature of administrative or, in rare cases, criminal sanctions.
For instance, a Commanding Officer may revoke a service member’s leave or vacation time or require the service member to perform additional duties. Should a service member not provide familial support, a complaint for familial support must be made to the Commanding Officer in the service member’s chain of command. Failure to report the complaint to the proper level of command could delay the determination and enforcement of familial support requirements.
Although a valuable resource, familial support imposed as a military obligation involves a separate process from resolving the other matters that may arise in a family law matter with a military family. Military service people may have their wages garnished to ensure child support payments are made. But court orders must be submitted to the Defense Finance and Accounting Service to garnish a person’s wages.
The rules established by the military must be considered when military service members are involved in a divorce case. When seeking child support, you will need to verify if your spouse is on active military duty. You need to determine your spouse’s income, which is an essential factor to consider when calculating child support. Obtaining this information can be a complex process. Military service members often receive benefits for food and housing, which may not be considered as part of their total income.
Since military service members are employed by the federal government, the legal options you can use will be unique to your needs. My office can assess the circumstances of your case. As a service member, or spouse or former spouse of one, you have unique child support needs. All branches of the armed forces offer parenting programs and resources to strengthen military families.
If you are called to active duty, you are protected under the Servicemembers Civil Relief Act (SCRA), formerly called the Soldiers’ and Sailors’ Civil Relief Act. The purpose of the SCRA is to allow United States military personnel to devote their full attention to the defense of our nation by suspending judicial and administrative civil proceedings that may impact their rights temporarily.
Some of the protections you may be entitled to under the SCRA are:
Stay of Proceedings
You may be entitled to place court proceedings on hold for a limited period of time. This is called a “stay” of proceedings. You must show that you cannot attend the proceeding due to military service.
Stay of Execution (Enforcement) of a Judgment
A service member can request that the court stop the execution of a judgment, attachment, or garnishment order. You must show the court that the military service prevented you from complying with the judgment and that the support case began prior to, during, or within 90 days after your military service.
Expedited Modification of Support
If you have a child support obligation or are receiving child support payments for a child in your custody, and are being deployed out-of-state, you have an opportunity to request a review and possible modification of the child support order before you deploy.
You may request that the interest rate being charged on past due child support that accrued prior to your deployment be reduced to 6% for the duration of your deployment. To be eligible for a reduction in the interest rate, you must prove that your activation to military service has a “material effect” on your ability to pay the usual, state-mandated interest rate of 10%. Generally, this would be the case if you were earning more before your deployment.
Military Qualified Debt Reduction Program (Military COAP)
The Military COAP Program allows for qualifying debt owed to the government to be reduced in certain cases. Eligibility is limited to a Reservist or a member of the National Guard whose income decreased due to activation to military service.
There are additional nuances in child support establishment and enforcement if you are in the military. Knowing your options and rights such as lowering your interest from the legally required 10% to 6% is just an example of the benefits afforded to our military personnel. Any inquiries, email me directly at [email protected]