Enforcing (and Defending Against) Military Dependent Support Guidelines

Author: Larry Burch Date: 12/16/2020

Categories: Military Law

Front view mid section of a young adult mixed race male soldier in the garden outside his home, embracing his young son, who is looking up at him smiling, backlit by sunlight, representing military dependent support. Although each of the military services (except the Air Force) imposes a requirement that its members provide support for dependents, enforcing the dependent support guidelines is often difficult.  A commanding officer does not have the authority to take support directly from a service member’s pay or allowances and give it to dependents even if there is a court order awarding support.  To take money from a service member’s pay and give it to his or her dependents requires a garnishment order (after obtaining a judgment of support) from a state court which is sent to DFAS — not to the service member’s command.   

Upon receiving a complaint for dependent support, the commanding officer is instructed to counsel the service member on his or her obligation to provide support.  If the service member refuses to provide adequate support after counseling, then the commanding officer may impose discipline (usually non-judicial punishment [“NJP”] under UCMJ, Article 15). A failure to pay support to dependents can be charged as “conduct unbecoming” or “failure to pay just debts” (under UCMJ, Article 134), or “failure to obey a lawful order” (under UCMJ, Article 92).   

Notwithstanding the requirement that the commanding officer shall enforce the service’s dependent support guidelines, rarely is a service member charged at either NJP or court-martial for a failure to provide adequate dependent support.  Often, the most effective method for getting dependent support from a service member is to threaten to send a complaint for non-support to the service member’s commanding officer.  Although a complaint for support is not likely to result in any formal punishment, it frequently has an adverse impact on the service member’s performance evaluation which may affect his or her military career and chances for promotion.   

In the military promotions are limited and become more competitive as the service member advances.  Often a failure to promote after two years of eligibility will result in a discharge from the service.  Performance Evaluations (or Fitness Reports) rank service members against each other and are submitted to the promotion board (and are often the basis for promotion or non-promotion).  An allegation that an NCO or officer is not providing adequate support to his or her dependents often lowers his or her standing and ranking among peers.  The service member will often “voluntarily” provide adequate support if threatened with a non-support letter which might affect his or her performance evaluation and future chances for promotion. 

Defending Military Dependent Support Claims:   In addition to the specific reasons for waiver of dependent support provided by each military service, there are more general defenses to a complaint for support that may be asserted.  If your spouse is threatening to contact your command and claim that you have failed to provide adequate support, your first defense is to appeal to your mutual self-interest.  If you are expected to provide support, your spouse is hurting your ability to do so by undermining your career.  The income and benefits that you and your spouse enjoy (including health insurance and a pension) are no longer available if you lose your job because you were declined a promotion.  If your appeal to mutual self-interest fails, there are other defenses. 

First of all, you are required to pay the amount stated in any court order or separation agreement.  If there is a court order in place, then you cannot pay other bills instead of the support amount ordered.  However, if there is no written agreement you may receive credit for paying expenses on behalf of your dependents (like car or auto insurance payments, rent, or mortgage).   

The “shared bills defense” requests that the Commanding Officer reduce the support required by the amount paid for shared family bills the service member.  It allows the service member to deduct some or all of the shared expenses paid by the service member.  If the lease or mortgage is in the name of both parties, then both parties are legally obligated to pay it.  Just because you move out of the apartment or house, does not mean you are no longer obligated under the lease or mortgage.  If the Commanding Officer is not willing to provide credit for the entire rent or mortgage payment, consider requesting credit for half the rent or mortgage since both you and your spouse are equally responsible for this obligation (at least until the lease is terminated).   

Assuming that you have recently separated (or you are considering moving out of the family home) and there is no court order or a separation agreement, there are some basic rules about dependent support claims.   

  1. There is no duty to provide support payments if you are living with your dependents. 
  2. There is no duty to provide support for a child who is not your child (unless you have adopted the child) or who is over 18 years old (unless an Agreement or Court Order states otherwise).  
  3. If you are providing a government housing unit to your dependents, Army Regulation 608-99 does not require any additional support from the service member.

It is uncertain how the Navy Dependent Support Guidelines interpret providing government housing to dependents.  Is the monetary amount of the service member’s BAH counted as part of the support paid?  Or, does the “gross pay” exclude the BAH when the service member is not receiving it and dependent support is calculated without considering the BAH the service member surrenders in exchange for the housing unit.

For help with this or other military or civilian legal issues, contact me by email or by phone at 301-251-1180. Read more information about my practice.