Child Support in a Military Divorce
In any divorce, the issue of child support can be very contentious, but when one or both spouses is in the military, there are a number of special challenges that can come into play. This is because, unlike civilians, the military branches largely consider financially supporting their dependents is part of a servicemember’s solemn duty, regardless of their marital or custodial status.
Based on federal regulations, military servicemembers and veterans are required to provide child support to all of their children, whether they are custodial or non-custodial. While the rules for military personnel do not supersede state rules with regard to child support, they do intend to ensure compliance with payment rules, while also providing an interim guideline for calculating financial responsibilities when a legal agreement has not been achieved.
If there is a written support agreement between the military service member and the non-military co-parent, or a state court order has been in place, a military service member is required by law to provide financial support under the terms of the agreement or legal court order. In the absence of a plan for financial child support, interim support measures are usually determined by the military until a court order is obtained.
Child Support Calculation for Service Members
In the absence of a military interim measure to determine the amount of child support obligation, the calculation of the required child support payments is exactly the same for a servicemember as it would be for a non-military servicemember, and it is primarily based on income.
The first step in calculating the amount of money a servicemember must pay for dependent child care is to determine how much money that military service member earns, using the military pay chart, the servicemember’s leave and earning statement, and such allowances as the Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence or Separate Rations (BAS). Once the military spouse’s earnings have been determined for a year, you can then divide that amount by 12 to calculate their gross monthly income.
Even though the IRS doesn’t tax military housing and food allowances, most states’ child support guidelines require that all been weighing in on this issue and they all seem to agree with the notion that even though allowances and other in-kind compensation are nontaxable, they should be counted as income for the purpose of calculating child support. In-kind compensation can include on-base housing, so if a servicemember lives on the base, the value of the housing can also be included.
To find the amount allowable for each child, the court will consult the general child support formula offered by the state attorney general, and then multiply the total income by the allowable percentage for each child. A servicemember may also be responsible for health insurance and child care expenses. State law will also provide more information on the proper way to calculate child support payments, as will the specific child support policies relevant to each branch of the service.
Child Support Payments
Once the monthly child support amount has been determined, it is important to set up a means of receiving the support payments when a service member is not able to assist in physically caring for the child or able to send money easily due to deployment. Keep in mind, the military does not regulate the method of child support payment; instead, they leave the decision up to the parents.
The Defense Finance and Accounting Service (DFAS) does allow military parents to set up a voluntary allotment, which is an amount to be automatically withdrawn from military income.
Regulations Governing Child Support
Whereas the US military does not routinely send payment to the NCP, the US military legally requires servicemembers to provide financial care for their children. Regulations also require them to abide by either the agreement between parents, the court order, or the military interim support measure, whichever is in place at a particular time.
Unlike civilian courts, the military branches consider it a service member’s duty to provide support for dependents, regardless of their custodial or marital status. Whenever a servicemember fails to fulfill their child support duties, it is possible to contact their commanding officer, who can then pursue non-judicial punishments against them. Those servicemembers who fail in their child support regulations may experience disciplinary action, up to and including separation from military service.
Interim Child Support Payments Through the Military
If a non-military parent with primary custody needs child support payments before a court order has been finalized, they may ask the military parent’s commanding officer for assistance. The officer will investigate and can then order the military parent to make interim support payments. While each branch of the military
Each military branch has its own regulations for determining child support payments, which are typically based on a formula that accounts for a service member’s gross pay and Basic Allowance for Housing (BAH). A service member is required to pay these interim support payments until there is a court order or child support agreement with the other parent setting the amount and schedule of payments. The interim support payments through the military will not trump the child support contained in a court order or agreement.
If You Are Not Getting the Full Child Support Amount
There are a number of legitimate reasons the custodial parent may not be receiving the full ordered amount of child support. The most common reason is the payor does not have sufficient disposable earnings to allow the deduction of the full amount.
The Consumer Credit Protection Act sets a limit on how much can be deducted from earnings as child support (or spousal support/alimony, for that matter). The limit ranges from 50-65 percent of disposable earnings. The full ordered amount of child support will be deducted if that amount does not exceed the maximum percentage allowable, which are as follows:
- 50 percent of disposable earnings if the obligor provides proof that they are providing more than half the support of dependents other than those for whom the support is to be deducted, and if the payor is not behind in their payments.
- 55 percent of disposable earnings if the obligor provides proof that they are providing more than half the support of dependents other than for whom the support is to be deducted, and if the payor is behind in their payments.
- 60 percent of disposable earnings if the obligor has not provided proof that he/she is providing more than half the support of dependents other than those for whom the support is to be deducted, and if the payor is not behind in payments.
- 65 percent of disposable earnings if the obligor has not provided proof that they are providing more than half the support of dependents other than those for whom the support is to be deducted, and if the payor is behind in payments
These percentage amounts will only be deducted if the person paying the child support has sufficient disposable income to allow for that amount to be deducted.
Child support obligations can be garnished from the pay of an active duty servicemember. If the servicemember retires, it can take up to 30-60 days to create the retired pay account, so there may be a short delay in child support when the servicemember retires.
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