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Military Support Without a Court Order During a Divorce in Texas

In prior articles, we have discussed alimony, spousal support and child support. We have also discussed “spousal starving” when one spouse cuts off financial access to the other spouse. In today’s article, we will revisit those topics. However, we will now examine how one of the parties being in the United States Military makes a difference.

Soldiers have a Duty to Support their Spouses and Children

A military divorce in Texas is very similar to a traditional Texas divorce. However, there are differences that must be taken into consideration. For example:

Soldiers are responsible for managing their personal affairs. A soldier’s responsibilities include:

  1. Maintaining reasonable contact with family members so that their needs and welfare do not become a concern of the Army
  2. Conducting themselves in an honorable manner with regard to parental and spousal commitments and responsibilities
  3. Providing adequate financial support to family members and
  4. Complying with any court orders or written financial agreements

These same commitments can be found for all branches of the military including:

  1. Army: Under AR 608-99
  2. Air Force: Under AF 36-2906
  3. Marine Corps: MCO P5800.16A
  4. Navy: MILPERSMAN Section 1754-030
  5. Coast Guard: CG-61

With a Court Order or by Agreement

All branches of service will require service members to comply with valid court orders for support and separation agreements.

In conjunction with some of the methods listed below a court order should be obtained as early as possible. opportunity. A court order will allow for enforceable child and spousal support remedies such as garnishment and involuntary allotment.

Without a Court Order

The above regulations establish interim family support guidelines for when there:

  1. is neither an agreement between the parties
  2. nor a court order for support.

Army: Under AR 608-99

For exam support under AR 608-99 begins on the date the couple becomes separated and goes into effect:

  1. if there is no oral or written agreement or
  2. court order addressing support.

An oral agreement will only remain in effect until there is a dispute. Once either party expresses dissatisfaction with the arrangement, the oral agreement will no longer be enforced and support will be paid in accordance with AR 608-99.

Amount of Support Under AR 608-99

AR 608-99 requires the Soldier to pay a pro rata share of the Basic Allowance for Housing (BAH) II-WITH amount. This amount is the BAH allowance without consideration of the geographic duty location.

When Does Support End?

Any court order or financial support agreements must be complied with if either exists.

Support requirements will also end when:

  1. another financial support agreement is made,
  2. once the marriage is terminated, or
  3. the Soldier’s commander relieves the Soldier of the support obligation.

When are Support Payments Due?

Support for the previous month is due on:

  1. the 1st of the following month, or,
  2. if mailed, must be mailed by first-class and post-marked by the 1st.

Payment may be made by:

  1. allotment,
  2. cash,
  3. check,
  4. money order,
  5. electronic fund transfer,
  6. voluntary allotment,
  7. involuntary allotment, or
  8. garnishment.

Whichever form of payment is used, must be document and all payments tracked.

A Commanders Responsibility

A commander is responsible for enforcing 608-99. A commander cannot order you to pay arrears (the past due amounts), he or she can order you to pay once he or she becomes aware of valid support obligations.

If the Soldier refuses to pay after he or she has been ordered, the commander may take the following action(s):

  1. Counseling
  2. Admonition
  3. Memorandum of Reprimand
  4. Bar reenlistment
  5. Administrative separation
  6. Nonjudicial punishment under UCMJ, Art. 15
  7. Court-martial; charged with violating UCMJ, Art. 92

What if a Soldier is Not Supporting his Dependents?

If a soldier is not properly supporting his or her legal dependents, a spouse may contact their Commanding Officer to alert them of the situation.

The current mailing address of the unit at the soldier’s hometown unit armory may be obtained by contacting Family Assistance Center.

The Inspector General

If a family member needs assistance regarding nonsupport they can also reach out to the inspector general.

The Inspector General will confirm that the family member has attempted to contact the sponsor's commander.

  1. If the family member has not contacted the commander, the Inspector General will provide the commander's address and phone number. The Inspector General may also assist the family member in drafting a memorandum to the commander, or direct them to legal assistance, which will also assist in drafting a memorandum.
  1. If the spouse has contacted the commander and has not received a response (14 days after receipt), or the response is not in accordance with Army Regulation (AR) 608-99, the appropriate Inspector General Office will open an Inspector General Action Request. A commander's inquiry will be requested to determine why the requirements of AR 608-99 have not been met.

Air Force: Under AF 36-2906

The Air Force has the policy of requiring complainants and service members of utilizing civilian courts for nonsupport issues.

The Air Force will advise its members that they are expected to provide adequate financial support to family members. If a member of the Air Force receives:

The Basic Allowance for Housing (BAH) at the with-dependents rate based on dependents that the Service Member refuses to support, then:

  1. the BAH will be terminated and
  2. the Air Force will recoup the BAH at the with-dependent rate for periods of non-support.

In many instances the Air Force member will only pay to the non-military spouse the difference between what is their BAH at the with and without dependent rates so that they continue to draw BAH at the with dependent rate and give the token appearance of paying at least some support.

The best solution is to pursue a court order for support as early and as quickly as possible when dealing with Air Force members.

Marine Corps: MCO P5800.16A

The Marine Corps regulation states that “The Marine Corps will not serve as a haven for personnel who fail to provide adequate and continuous support to their family members.”

In the absence of an agreement or court order the regulation states that the Marine involved shall pay the greater of either the fixed amount of support for the requesting family member or else the fraction of BAH/OHA3 based on the total number of eligible family members that exist.

The Marine Corps regulation is punitive; this means that a Marine may be punished under the Uniform Code of Military Justice by:

  1. means of a court-martial or
  2. nonjudicial punishment for violation of the interim support regulation, the financial dependent support terms of a court order, or the financial support terms of a written agreement regarding dependent support.

A commanding officer has the discretion to reduce or eliminate the interim financial support standards if:

  1. the gross income of the complaining spouse exceeds the gross military pay of the Marine,
  2. the interim support has been provided for a continuous and uninterrupted period of 12 months,
  3. the Marine has been the victim of substantiated instance of abuse by a spouse seeking support, or
  4. the Marine “is paying regular and recurring obligations such as rent or consumer debts of the family members requesting support of sufficient magnitude and duration as to justify a reduction or elimination of interim support.”

Navy: MILPERSMAN Section 1754-030

The Navy nonsupport policy states that, in the absence of an agreement or order, a unit commander may use the following as a guide for the adequacy of support:

  1. Spouse only: 1/3 of gross pay
  2. Spouse and one minor child: 1/2 of gross pay
  3. Spouse and two or more children: 3/5 of gross pay
  4. Spouse and four or more children: >3/5 of gross pay
  5. One minor child (no spousal support): 1/6 of gross pay
  6. Two minor children (no spousal support): 1/4 of gross pay
  7. Three minor children (no spousal support): 1/3 of gross pay.

For these purposes “gross pay” includes base pay and the BAH but doesn’t include the basic allowance for subsistence (BAS), hazardous duty pay, sea or foreign duty pay, or incentive pay.6

A sailor may request a waiver of spousal support based on:

  1. desertion without cause,
  2. physical abuse,
  3. or for infidelity on the part of the spouse.

This waiver request shall be submitted to the Director, Navy Family Allowance Activity. It must include:

  1. a complete statement of facts,
  2. the recommendation of the Service Members commander, and
  3. substantiating evidence

Coast Guard: CG-61

The Coast Guard policy on support of dependents provides that if, after counseling, the Service Member demonstrates a:

  1. pattern of non-support and/or
  2. failure to obey civil court support orders, he or she is subject to administrative discharge for unfitness.

Non-support that is "notorious" and discrediting to the Coast Guard can result in:

  1. a court-martial or
  2. other disciplinary proceedings.

Court orders for support are normally binding on members.

If, however, a "member acting on good faith and on the express advice of qualified legal counsel disputes such a claim, the commanding officer may withhold disciplinary /administrative action against the member for a reasonable length of time.

When there is no order or agreement, the following support scale is used:

  1. Spouse only: BAH difference plus 20% of base pay
  2. Spouse and one minor child: BAH difference plus 25% of base pay
  3. Spouse and two or more minor children: BAH difference plus 30% of base pay
  4. One minor child: 16.7% (1/6) of base pay
  5. Two minor children: 25% (1/4) of base pay
  6. Three or more minor children: 33% (1/3) of base pay.

Defenses to non-support of a spouse include infidelity or desertion. Defenses to non-support of a child are:

  1. inability of the Service Member to ascertain the whereabouts and welfare of the child, or
  2. the facts that the person seeking support does not have physical custody of the child
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