Special Issues in Military Divorce: Child Support

1.    Temporary Support

When a military family is going through a divorce there is often a period of time before they sign a Property Settlement Agreement or seek a Court Order in which family members will require support from the SM.  Military regulations require that SMs support their families.  Each branch has issued its own guidelines for determining the proper amount of support the SM should provide.  These are intended to be temporary amounts and they are not meant to replace the Virginia child support guidelines.  These are stopgap amounts to support the SM’s family until an agreement can be reached, or until a court order is in place.  While you may be wondering why temporary support would be necessary if the petitioning party can just get an arrearage dating back to filing, consider that many military spouses are not employed or near family due to moving around with the SM, thus they are relying solely on the support of the SM.  

    When attempting to secure temporary support from a SM ask them directly for it first.  If that does not work, the best practice is to draft a letter to their commanding officer (CO) complaining about a lack of support.  The CO will meet with the SM and coach them on following the proper guidelines.  In every branch other than the Air Force non-compliance is punitive.  Note that the guidelines used by the different branches encompass both spousal and child support, or simply refer to family members needing support. 

 

    i.    Air Force

    The Air Force has the most relaxed policy on enforcing temporary support.  Generally, the policy is that SMs must provide support and they are encouraged to use civilian courts to determine the amount of support.  The Air Force regulation is not punitive, but a SM that receives Basic Allowance Housing (BAH) at the with dependents rate will need to repay the difference between the amount received and the standard BAH if no support is provided.  

 

    ii.    Army

The Army has the most complicated regulation on temporary support, AR 608-99.  Determining temporary support will require looking at the BAH tables published by the Department of Defense.  There are three forms of BAH you need to understand to properly apply the Army guidelines.  First, BAH II is BAH plus a geographic adjustment to account for different standard of living costs.  Second, BAH II – WITH is the BAH II rate plus an additional amount to account for dependents.  Third, BAH II – DIFF is the difference between the BAH II – WITH and BAH II rates.  

    A single SM must pay the FS or other parent at a minimum the BAH II – WITH rate.  A SM married to a civilian and now separated must pay the BAH II – WITH rate in support if their spouse lives off base, but would not have to pay anything if the spouse and children were still living on base.  If the SM is married to another active duty SM, the higher earning SM would pay the BAH II – DIFF rate in support if they had children, no support would be owed if they did not have children.

 

    iii.    Coast Guard

    The Coast Guard regulation on temporary support is straightforward in that they use a standard scale.  Note that “Difference in BAH” means the difference between the BAH the SM receives when married and what the SM would receive as a single soldier.

    Spouse Only:                 Difference in BAH + 20% Base Pay

    Spouse and 1 Child:             Difference in BAH + 25% Base Pay

    Spouse and 2 or More Children:     Difference in BAH + 30% Base Pay

    1 Child:                 16.7% Base Pay

    2 Children:                25% Base Pay

    3 or More Children:            33% Base Pay

    The Coast Guard regulation also allows the SM to assert certain defenses against paying support, including: adultery, not having sufficient information about the child, and the person seeking support does not have custody of the child.  

 

    iv.    Marine Corps

To calculate temporary support, the Marine Corps uses the following table reproduced from U.S. Marine Corps, Order P5800.16a Marine Corps Manual for Legal Administration, Chapter 15:

Total # of Family Members Entitled to Support

Minimum Amount of Monthly Support per Requesting Family Member

Share of Monthly BAH/OHA per Requesting Family member

1

$350

1/2

2

$286

1/3

3

$233

1/4

4

$200

1/5

5

$174

1/6

6 or more

$152

1/7, etc.

 

    Note that Overseas Housing Allowance (OHA), refers to the BAH equivalent for SMs serving overseas.  The amount of support owed will be the higher amount from either the center or right column, but support cannot exceed one-third of the SM’s gross pay.  The CO also has discretion to reduce/eliminate support and may do so in the following circumstances: the spouse has a higher gross income than the SM, the SM was abused, temporary support has been provided for more than one year, the SM pays other expenses (rent, debt, etc.)

 

    v.    Navy

The Navy uses a scale similar to the one used by the Coast Guard.  Note that “gross pay” is base pay plus BAH.  The CO is responsible for setting the amount of support according to the scale.

Spouse Only:                 1/3 Gross Pay

    Spouse and 1 Child:             1/2 Gross Pay

    Spouse and 2 or More Children:     3/5 Gross Pay

Spouse and 4 or More Children:     at least 3/5 Gross Pay

    1 Child:                 1/6 Gross Pay

    2 Children:                1/4 Gross Pay

    3 or More Children:            1/3 Gross Pay

H. Van Smith
Trusted Virginia Family Law Attorney Serving Richmond to Williamsburg