The Legal Assistance Office receives many questions concerning the obligations of Soldiers to provide financial support to family members. State law requires parents to support their children and, depending on the circumstances, the higher earning spouse to support the other if the couple separates. Army Regulation 608-99, “Family Support, Child Custody, and Paternity,” imposes obligations on you and your commander to ensure you provide financial support to your family members.
AR 608-99 provides that “Soldiers will comply with the financial support provisions of all court orders.” In every case in which a commander receives a complaint, he should first ask to see a divorce decree or a child support order. If the order grants the Soldier’s former spouse a certain amount of alimony or spousal support, the Army requires the Soldier to pay that amount.
In many cases, spouses who are separating will enter into a written separation agreement that addresses both spousal and child support, pending the filing by either side for divorce. Separating parties may terminate these agreements upon divorce or incorporate them in the divorce decree. Soldiers should be aware that the Army will require a Soldier who signed such an agreement to honor it by paying the amount of support the agreement specifies. Therefore, if offered such an agreement, it is important to seek the advice of a lawyer before signing. Most Army legal assistance offices draft simple separation agreements and review agreements drafted by the other party’s lawyer. However, a legal assistance office may assist only one spouse. For example, if the Fort Detrick Legal Assistance Office assists the husband, then the wife must make an appointment at another nearby installation, such as Fort Meade’s Legal Assistance Division.
If the Soldier doesn’t have a court order or an agreement, he or she should reference AR 608-99 for the set amount of support, which depends on three factors: the sponsor’s grade, whether one or more family units require support and whether the current family members live in on-post housing. The amount will be based on the Basic Allowance for Housing table II for that Soldier’s grade.
If the Soldier has one family unit that does not reside in on-post housing, and the Soldier does not have any children living in another household, the amount equals BAH II-WITH, meaning Basic Allowance for Housing with dependants. The amount is based on the Soldier’s grade, regardless of whether or not the Soldier receives BAH II-WITH in his/her Leave and Earning Statement and regardless of the size of the family unit. The amount does not change if the Soldier has a spouse and no children or a spouse and five children. Thus, in the absence of a court order or agreement, a sergeant supporting an estranged spouse living off post with their two children owes his family $884.70 per month. The Soldier does not owe any additional amount of support if an estranged spouse remains in on-post housing after a separation. If the family members move out of government housing, the Soldier must pay the amount equal to BAH II-WITH.
Finally, if the Soldier maintains more than one family unit, each family member receives a pro-rata share of BAH II-WITH. The pro-rata share is calculated by dividing BAH II-WITH by the total number of family members being supported, not counting former spouses. For example, consider a captain who pays child support, as ordered by a court, to his former wife who has custody of their two children and now separates from his current wife who lives off post. If they do not have a court order and have not been able to reach an agreement between themselves, how much will the Army require him to provide to his current wife and to his children living with his former wife?
He must continue to send the amount ordered to his former wife for their two children, and he must send a pro-rata share of his BAH-II to his current wife. If his BAH II-WITH were $1,211.10, he would pay $403.70 to each of the three family members to whom he owes support. So, every month he should send at least $403.70 to his current wife.
This example is a common situation that involves applying the Army’s family support requirements. There are many more wrinkles, such as when both spouses involved are active-duty military members and when some live on post and some do not. The important thing to remember is that the Army takes the obligation to support family members very seriously. Commanders are required to counsel Soldiers on their obligation to follow the regulation, and they may take adverse administrative action against Soldiers who refuse to obey court orders, to honor written agreements or, in the absence of an order or written agreement, to pay the interim amount required by AR 608-99.
If you are a Soldier or family member and have questions about financial support obligations, make an appointment for counseling at the Fort Detrick Legal Assistance Office by calling (301) 619-2221. If you are an Army leader and have questions about your subordinate’s obligations, contact your servicing Trial Counsel by calling (301) 619-2065.