Service to the Family: The Military Member's Obligation to Support Their Dependents, 0720 ALBJ, Vol. 81 No. 4 Pg. 270 (July, 2020)
| Author | By Maj. Bryan M. Taylor |
| Position | Vol. 81 4 Pg. 270 |
MILITARY LAW ISSUE
By Maj. Bryan M. Taylor
Military members have a unique obligation under service regulations to provide financial support for their family members. Their obligation to provide familial support exists even in the absence of a divorce decree or other child support order,1 and while each service maintains its own regulation, a failure to meet the obligations of an applicable regulation can have dire consequences. Such consequences even include criminal prosecution under the Uniform Code of Military Justice for failure to obey a lawful order or regulation; more commonly known as a court-martial. To provide competent representation, a lawyer should possess familiarity with these military regulations prior to representing a client in a divorce or child-custody matter where one of the parties is a military servicemember.
This article discusses the family-support requirements imposed by Army Regulation (AR) 608-99, which may apply to Army reservists and National Guard personnel in some instances.2 While this article does not specifically address the Air Force, Navy, Marine Corps, and Coast Guard regulations requiring family support, familiarity with the Army's regulations will facilitate an understanding of the corresponding provisions in each Armed Service's regulations.
What obligations does a soldier have to support his or her family?
Active-duty soldiers are legally required "to provide financial support to family members."3 The soldier's obligation to support their family is such that they are expected to keep "reasonable contact with family members, as well as others who have a legitimate need to know" to resolve family-support issues without command involvement.4 "Allegations or even proof of desertion, adultery, or other marital misconduct, or criminal acts on the part of a [current] spouse" do not excuse a soldier's obligation to provide support to their family.5
In the Army, AR 608-99 provides the regulatory mechanism for determining, calculating, and enforcing this support obligation; not just in the context of divorce, paternity, or child support proceedings, but whenever a dispute arises-typically between spouses-as to whether the servicemember has failed to provide financially for their family. Under this regulation, a soldier cannot fall into arrears on financial support to their family without violating AR 608-99.6 And when a soldier fails to meet their obligation to financially support their family, their military commander is responsible for directing and enforcing compliance, including the use of punitive disciplinary action if necessary.7
In cases where children are involved, the obligation of financial support terminates on the child's 18th birthday unless a written agreement or court order mandates post-minority support.[8]In cases involving financial support for a prior spouse, soldiers are not required to provide support unless mandated by a final divorce decree or other court order.9 In certain circumstances-usually when spouses have been separated for more than 18 months or when a child is placed in the custody of a person who is not the lawful custodian of the child-a commander can release a soldier from a support obligation that exists solely by virtue of regulation.[10]
A lawyer representing a soldier's family members, including a guardian adlitem appointed to represent a dependent child, should understand that a complaint of nonsupport may be lodged even when divorce is not contemplated (for example, when a soldier is deployed overseas and cuts off financial support to his family for any reason). A lawyer advising a soldier should understand their client's obligations under Army regulations in order to protect them from financial hardship and adverse personnel actions.
How do I calculate the amount of financial support a solider is required to provide?
In cases involving a soldier, the amount of financial support owed to their family will be determined by a court order, a written agreement, or a regulation.11 Where a court order exists, the provisions of AR 608-99 do not replace, and cannot reduce, the family-support obligation imposed by the court.12 Soldiers, like their civilian counterparts, must follow court orders.
In the absence of a court order, any specific amount of financial support contained in a written agreement controls.13 Written agreements can include a signed marital-settlement agreement awaiting court approval, an informal separation agreement between spouses, or a stand-alone agreement between unmarried parents who have worked out a child support plan without court involvement. If a written agreement between spouses establishes an agreed-upon amount of financial support, Army commanders are obliged to enforce it "without making interpretations that depart from the clear meaning of the agreement."14 Keep in mind, however, that parties cannot "revise" a court order through prior or subsequent written agreement. In such cases, a commander would be required to enforce the court order, rather than the written agreement.
Finally, where no court order or written support agreement exists, soldiers must provide financial support in an amount determined by a relatively simple formula contained in AR 608-99. The Army's formula is based on a monthly allowance known as the Basic Allowance for Housing, or BAH. A soldier's BAH is based on their geographic duty location, pay grade, and whether they have dependents. For purposes of determining the amount of family support owed in the absence of a court order or written agreement, AR 608- 99 uses a derivative rate referred to as "BAH II-WITH," which is the BAH rate for a soldier with dependents and without regard to duty location. Fortunately, soldiers, commanders, and lawyers can easily determine the applicable BAH II-WITH amount by using a one-page chart maintained by the...
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