If a service member believes that he or she has grounds for a waiver of dependent support, he or she may submit a written request for a waiver of support. The waiver is initial sent to the Commanding Officer and then to DFAS. Physical abuse and desertion are reasons for a waiver of spousal support. However, the service member’s requirement to pay child support is not affected by the spouse’s conduct. If the children cannot be located or are not in the care of the person seeking support, then a waiver is appropriate. The waiver request should contain affidavits of witnesses with personal knowledge of relevant facts, along with police reports, medical records and other evidence as well as the CO’s recommendation, if any. (MILPERSMAN 1754.030.5 and 7.)
a. Army: The Army Dependent Support Guidelines (Army Regulation 608-99) provide for support based on a percentage of the soldier’s BAH II with (with dependents). BAH II is the portion of the Basic Allowance for Housing that does not include locality pay (or variable housing allowance). If the soldier or officer has five dependents then he or she would be required to pay each dependent 1/6 of his or her BAH II with (since there are six people including the soldier who are entitled to receive the allowance).
A soldier who receives BAH II with of $1,800 per month with two dependents, would be required to pay $1,200 (or 2/3 of the BAH II) per month as dependent support. For three dependent, support would be ¾ of 1,800 or $1,350 per month (about ½ the amount required by the Navy’s guidelines).
Dependent support required by the Army’s guidelines is often less than the support that would be required by the state child support guidelines. If you are seeking dependent support from a member of the Army, you should file a Complaint for Temporary or Pendente Lite Support in state court and have your attorney seek a hearing as soon as possible.
Responding to a Complaint for Dependent Support: According to AR608-99-2.14, “a battalion commander may release a soldier from this requirement [to provide support] if paragraphs (a) through (c), below, all apply—
(a) An instance of abuse committed by the supported spouse against the soldier has been substantiated by either of the following:
1. A family advocacy case management team, acting pursuant to AR 608–18, or
2. A court as evidenced by a judgment amounting to a conviction or by the issuance of a permanent restraining order (or a temporary restraining order then in effect) against the supported spouse.
(b) The instance of abuse did not involve a mutual affray or an act of physical abuse by the soldier against his or her spouse (substantiated by a family advocacy case management team or court judgment or order).
(c) The soldier is not receiving BAH–WITH solely on the basis of providing financial support to that spouse or agrees to terminate such BAH–WITH effective upon the date released from the support obligation.”
In addition to abuse, the support may be waived, if: “(5) [t]he supported family member is in jail. (This does not give the battalion commander authority to release a soldier from the requirement to provide support required by a court order or a written financial support agreement.)”