“Where’s the Money?”
A National Guard Service Member’s Family Support Obligations.
Remarkably, one of the most common soldier assistance requests I get as a Judge Advocate comes from a company commander of a deployed service member who is not paying spousal or child support to their dependent(s).
This should come as no surprise when approximately 38% of America’s total military force today is made up of National Guard citizen-soldiers, and divorce rates in the military are generally higher than the civilian population and increasing.
A service member has a duty to support his or her children, regardless of whether or not they are married to their child’s other parent . The most common reason a soldier fails with his or her support duty is the misinformed belief that “being separated” has some legal meaning. It does not.
Confusingly, each of the National Guard’s fifty-four States and territories have different laws regarding separation, divorce, and dependent support, and “Separated”, has no legal meaning in the military (except for Family Separation Allowance (FSA) not applicable to dependent support). A service member is either married or not married. Period.
Failure of a service member to support his or her dependents can result in significant punishment, including memorandum of reprimand, Article 15 action, and courts-martial under the Uniform Code of Military Justice.
The rules discussed below generally apply to Guardsmen on Active Duty Orders (Title 10), typically deployed OCONUS.
Army National Guard
Unless there is a prior written agreement of support between the soldier and dependent spouse, or a prior court order, a soldier must comply with dependent support rules in AR 608-99, when on active duty orders (Title 10) for thirty days or more. However, a soldier is not required to provide financial support to an active duty spouse, unless by court order , or when the civilian spouse’s income exceeds the income of the soldier.
The amount of dependent financial support varies depending on a soldier’s pay grade and can be found in the Non-Locality Basic Allowance for Housing Rates (aka. BAH II-WITH) table, or online at: https://militarybenefits.info/non-locality-bah-rates/ Each dependent is entitled to their pro rata share of support of the BAH II-WITH.
Dependent support payment is due on the 1st of the month AFTER the previous month, and begins on the date that the soldier and dependent stopped living together in the same dwelling . It is presumed that the soldier is complying with any dependent support obligations until a complaint is filed with command.
While there are no legal means in Army Regulations to collect past due support payments (known as “arrearages”) a court may order payment of arrearages and garnish a soldier’s wages. However, soldiers who fall into arrears may be punished under the provision of Article 90, UCMJ, for failing to make support payments as required by AR 608-99.
The preferred method of payment is by voluntary allotment through DFAS. I recommend voluntary allotment whenever possible as it is good insurance against a soldier’s commander receiving a dependent’s complaint that he or she wasn’t paid. Always report any dependent changes to DFAS as soon as possible.
A battalion commander may release a soldier from the dependent support requirements under very specific circumstances. But, because of the complex legal nature of a commander’s release, I strongly advise both the soldier and commander considering release to consult with their Brigade JA before any release orders are issued.
Air National Guard
Air Force Instructions (AFI) regarding airmen dependent support obligations are contained in Air Force Instruction 36-2906. 5
There is no specific rule stating when an airman’s dependent support obligation begins. Presumably, it would begin upon issuance of Title 10 orders (unless superseded by court order).
AFI 36-2906 requires all airmen to provide “adequate financial support of a spouse or child or any other relative for which the member receives additional allowances for support”. Any airman who has dependent support issues should promptly consult with their JA about adequate support and payment to the dependent(s).
Be advised that an airman may not receive BAH II-With while failing to support dependents (or not having any dependents). Any BAH II-With received improperly will be recouped, and significant disciplinary actions will likely result.
Like soldier dependent support payments, I recommend airmen make voluntary allotment payments as this ensures timely payment and reduces risk of a complaint filed with command by an upset dependent.
Each service member’s family dependent support situation is different. The best course of action every service member can take when he or she has dependent support issues is to speak with their battalion or brigade JA as soon as possible, well before a complaint by an angry dependent is filed.