Gung Ho for Support

Both North Carolina and the military branches require service members to support dependents. North Carolina has child support guidelines used by its courts, and revised guidelines become effective 1 January 2011. Each military branch has support guidelines, some more strict than others. North Carolina and military obligations are not redundant, and in most cases the military encourages the parties to resolve service member’s support obligations in civilian courts. The military guidelines are designed to ensure the service member supports dependents until a Separation Agreement and Property Settlement (SAPS) or court order is entered.  The major military branches have published support requirements accessible to its service members and the public. (See www.legalassistance.law.af.mil) A description of the service member’s child and spousal support requirements are found in the relevant manuals as follows:  

• Air Force: Air Force Instruction 36-2906 (Personal Financial Responsibility)

• Army: Army Regulation 608-99, Chapter 2, Section II

• Coast Guard: Coast Guard Personnel Manual, Chapter 8.M

• Marines: Marine Corps Legal Administration Manual, Chapter 15 (MCOP5800.16A)

• Navy: Navy Military Personnel Manual, Section 1754-30 (MILPERSMAN)

If a service member improperly refuses to pay support, a service member’s spouse should send a complaint to the appropriate commanding officer (i.e. battalion commander) requesting enforcement of the court order or military’s requirements. Failure to pay support may be punished as a criminal offense under the Uniform Code of Military Justice (UCMJ). The Federal government may garnish a soldier’s pay up to a maximum of 55%, but North Carolina will only garnish up to 40% of a soldier’s pay.In North Carolina, a district court hears child support cases in the county in which the child resides. Generally, the noncustodial parent must have minimum contacts with North Carolina for it to exercise jurisdiction over the child support case. This does not mean that a noncustodial parent may move from North Carolina to another State in an attempt to lower their child support obligation, because certain laws exist to prevent that situation. If a child and custodial parent move to North Carolina, then the noncustodial parent may attempt to get a North Carolina court order to pay support according to the North Carolina guidelines. However, the court has the power to modify child support upwards or downwards.

Waivers of support obligations are sometimes available to service members. For instance, in the Navy, a service member may request a waiver of the requirement to pay spousal support if the sailor provides evidence of physical abuse or infidelity. The Navy also has a waiver process for child support; say for instance, if it is apparent that the person requesting child support does not have physical custody of the child. Even if a service member is granted a waiver by a commanding officer, the service member’s spouse may seek enforcement through a higher authority in the military and/or from a civilian court. A waiver is unlikely to override a court’s order, and so a service member should still consult a JAG or civilian attorney in North Carolina to ensure that the service member is in compliance. If a North Carolina court finds that the service member failed to pay child support or spousal support required by law or under an order it will likely find the service member in contempt and possibly award attorney fees to the custodial parent. Even if no court order exists, a service member may be required to pay retroactive child support if the custodial parent makes this claim.

Any received Family Separation Allowance (FSA) should be factored into support obligations when negotiating a SAPS. Service members must be prepared to repay FSA if they are in the midst of a separation in North Carolina. According to the Department of Defense Financial Management Regulations, the military will attempt to recoup from the service member any FSA paid since the date of separation. In North Carolina, the date of separation will be in a SAPS and a divorce decree because North Carolina divorce law is based on one year of separation. (This is an anomaly because other states may not require a specific separation date to be included in divorce documents so service members may keep the FSA.) There is an exception to recoupment based upon the amount of time the service member’s child would reside with the service member but for their current assignment. The same threat of recoupment likely applies to the service member’s other allowances.

Everyone should understand that the military’s purpose for their support requirements is to be a temporary solution. The military prefers assisting with enforcement of SAPS and orders, rather than setting a long term support amount. Once a SAPS is signed or court order on support is entered it is the controlling document.