A military divorce can differ from standard
family law cases in many important respects. If you are considering a military divorce, it is important to seek help from a law firm who understands these issues and has the skills necessary to successfully resolve your case without unnecessary stress or confusion.
One issue that frequently causes contention during a military divorce is support obligations. Each of the military services have regulations which require members to "provide adequate support" to family members. Unfortunately, there is one major obstacle that frequently keeps spouses from receiving support after divorce: the military has absolutely no authority without a court order to "force" an individual to pay such support against his/her will.
This is upsetting for a lot of spouses who have claimed nonsupport because they feel like the military is not doing anything to help them. The primary reason for this is that the military is not allowed to discuss punishment or penalties that they enforce to anyone. Even though the military can and does punish military members who fail to provide support, they will not discuss these penalties with the spouse who is not receiving support.
These punishments are covered under the Privacy Act of 1974, which governs the collection, maintenance, use, and dissemination of personally identifiable information about individuals that is maintained in systems of records by federal agencies. What constitutes as "adequate" support after a divorce is defined differently from service-to-service. For example, the Air Force Instruction 36-2906 on PERSONAL FINANCIAL RESPONSIBILITY does not specify a specific amount for "adequate support". Instead, the Air Force leaves it up to the individual's commander to determine the amount based on the circumstances if there has not been a written agreement or court order.
On the other hand, Army Regulation 608-99, "FAMILY SUPPORT, CHILD CUSTODY, AND PATERNITY, requires a soldier to provide an amount equal to BAH (Basic Allowance for Housing) Type II, at the "With Dependent Rate." The only exception to this rule is if there is a written agreement or court order that provides for a different amount of support. At the same time, spouses must also realize that the amount of support obligation will be divided equally among all of the parties that the solder has an obligation to support. This means that if a soldier's rank provides for a BAH Type II rate of $400 per month and he files for divorce from his wife and child, he must pay $200 every month to both his wife and his child.
There are regulations in place, however, in which a commander can waive these requirements. If the nonmilitary spouse makes more money than the soldier or if they are in jail, the requirement to pay support may be waived.
The Naval Personal Manual §1754-030 provides clear guidelines to commanders for determining "adequate support" based on the spouse and the number of children that are involved in the divorce or separation. Ultimately, all military services are reluctant to become involved with support disputes and feel that the matter should be resolved in court. This is clearly seen in the military's inability to force a member to pay child support against their will unless a civil court has ordered the member to do so.
As a result, military services will turn to other forms of punishment such as a reduction in rank, non-judicial punishment, reprimand, and even discharge for military members who continually refuse to provide "adequate support" for their spouse and children. The only problem is that the spouse who is not receiving support will never know about these penalties because of the Privacy Act of 1974.
The Department of Defense Financial Management Regulation also penalizes service members who fail to pay adequate support to their dependents. This may include stopping payments of BAH at the "with dependent" rate and recouping any BAH payments that were already made for periods involving nonsupport.
In addition to individual service regulations, The Department of Defense Financial Management Regulation prohibits payment of BAH (at the "with dependent" rate) to members who refuse to provide adequate support to their dependents. The regulation also contains provisions to recoup any BAH payments already made for periods involving nonsupport. If you are dealing with a military divorce,
child support, or
child custody issue in the Phoenix area, you need an experienced, hard fighting Phoenix divorce lawyer on your side.
Military divorce is one of the most confusing and legally complex aspects of family law, and our firm has over 25 years of experience in legal matters of this nature. Contact us today for a free consultation.