Generally speaking, the military will let couples go through the divorce without much interference from the government. One area that military Command will intervene in is the issue of child and spousal support.
Amount of Payment
The military requires their service members to provide “adequate support” to family members, although how much this is varies depending on the service. Generally speaking, it will be lower than the amount required by Alabama state law, and it will usually not apply if the state court already has ordered child support or alimony. These provisions will only apply if there are no orders in place. In other words, recipients can’t ‘double dip’ to maximize their payments.
In the Army, the regulations require a soldier to provide an amount equal to the “Basic Allowance Housing Rate, Type II at the ‘with dependent rate’”, unless a court order provides differently. These rates are aimed at providing service members with compensation for equitable housing, based on various cost of living rates and rank in the military.
The Navy provides a set of guidelines when determining adequate support, based upon fractions of the sailor’s gross pay. For instance, when divorcing a spouse with one child, they will receive ½ the sailor’s gross pay. In the Navy, gross pay is basic allowance for housing and base pay, but does not include hazardous duty pay, incentives, foreign duty pay or a subsistence allowance.
Bear in mind that these amounts are also a cap on the amount of salary a service member’s earnings can be garnished for child support and alimony. The full limits are found in the Consumer Credit Protection Act (15 USC 1673), and it limits the amount payable as between 50 to 65 percent of the serve member’s wages.
Of course, these are not hard and fast rules – the commander may waive the provision in cases where the soldier is a victim of abuse or if the spouse makes more money than the soldier.
Note that the military does not have any authority to force a military member to pay support against their will without a garnishment order issued by a civil court. Of course, the military can punish anyone who fails to provide adequate support, but they cannot garnish pay without the backing of a court order from a civilian court.
With that said, divorce orders that call for spousal or child support must keep in mind that the Office of Personnel Management must approve these orders before a service member’s pay can be garnished, either for monthly support obligations, or for arrearages in support. The order must then be submitted to the appropriate payroll center of the military, which varies based on the branches and location where the service member is serving. An attorney with experience in military divorces will be able to help you with this.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) also specifically allows the withholding of family support from the pension of a service member who has since retired. Retired pay is a source of money that Alabama judges will consider when determining the amount of child support or alimony that should be paid, including tax-free income from the military. The Defense Finance and Accounting Service (DFAS) is the agency responsible for administering retired pay garnishment, and they have specific rules in place for doing so. Again, speaking to an experienced attorney will be crucial in ensuring various orders are drafted correctly.
Before proceeding with a case against someone in the military, it’s important to remember that they do have some protections against litigation, particularly while they are serving. The Servicemember’s Civil Relief Act protects a service member from having to appear in court if they are deployed or assigned overseas.
Getting involved with a military divorce requires someone with knowledge about the multiple provisions that affect service members. If you have questions about your rights or obligations under military provisions, or are curious about the particulars of a military family law matter, get in touch with Charlotte Christian today.