Determining Child Support in State Courts

State Child Support Guidelines –

Every state court; just like each branch of the military service, has a different method of determining the appropriate amount of child support. In Maryland and D.C. (and all other states) child support is determined by a child support guideline based on the cost of living in each state.  That’s where the similarity ends. Maryland requires parents to pay support for their children until age 18 (or up to age 19 if the child is still a high school student), while D.C. requires child support to continue until age 22 if the child is in school full-time.

If you are a dependent of someone in the USMC, Air Force or Army and are seeking support, you would want to file for support in state court as soon as possible since the dependent support guidelines for these services are usually less than state child support guidelines.  Conversely, if you are in the Navy you would want to have the support case heard in state court as quickly as possible to avoid the more onerous support guidelines that the Navy imposes on its service members.  Remember, in all military services a state court order for support, or a separation agreement between the parties (even if it calls for no support) takes precedence over the military dependent support guidelines.

Determining a Service Member’s Income:

Each state has difference support guidelines and different methods for determining how much support is required. Typically, child support is determined based on each parents’ gross monthly income (income earned before deductions for taxes).  Tax exempt allowances, like BAH and BAS and even combat pay are included as part of a service members gross income for determining child support. However, the tax exempt allowances are calculated on the net amount received by the service member and not the total value of the allowance if the service member were required to pay taxes on his or her BAH or BAH. In other words, if the tax free housing allowance (BAH) is $2,100 per month the real value is $3,000 per month to someone paying 30% in taxes on these funds, but $2,100 would be added to the service member’s income (not $3,000).[1]

Veteran’s Administration disability pay or retired pay is also included as income.  Scholarships and housing allowances or car allowances are also considered income.  For example, if a service member receives a government housing unit the value of the government housing unit (the service member’s BAH) is included as income for determining child support even though the service member never actually receives the funds. Instead, he or she receives housing in lieu of the BAH.  If the service member is paying additional money for health insurance to cover his dependents than that additional sum is included in the child support guidelines and paid by the parties proportionate to their relative incomes (in Maryland). Most states divide the work-related day care costs between the parents based on their relative incomes.

If the daycare is $500 per month and mother earns 60% of the family's income and father earns 40% -- then mother would pay $300 per month and father would pay $200 per month towards the work related daycare. If one party is already paying the daycare costs, he or she would get credit for the expenditure. Child support would be reduced by the amount of the daycare expenses the other parent should be contributing based on the parties relative incomes.

In seeking child support, the sooner you file for support the sooner get to court and obtain an award.  But, the support award is usually applied retroactively to the date that the petition for support was filed.  If you file a petition or complaint for support on July 1, and the case does not get to trial until December 1, the court will begin calculating child support as of the date of the filing (July 1).  At the trial, if the respondent has not paid any support during that period, he or she would already owe five months of back child support (child support arrears). The court would ordinarily require the Respondent to pay an additional 10 to 25% per month in addition to child support to pay off any child support arrears.

[1]  Be advised that each state may have different rules on including non-taxable allowances as income for determining child support or spousal support.

Defending Military Dependent Support Claims In Bethesda

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 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 a 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.

Enforcing the Military Dependent Support Guidelines in Bethesda

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 from a service member’s pay or allowances and give it to his or her 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[1] and not to the service member’s command. 

Upon receiving a complaint for dependent support, the CO is instructed to counsel the service member of his or her obligation to provide support.  If the service member refuses to provide adequate support after counseling, then the CO may impose discipline (usually non-judicial punishment 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 CO shall enforce the 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 or fitness report which may affect his or her military career. 

In the military promotions are limited and become more competitive as the sailor or officer 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 with the chain of command and his or her rank among peers.  When the service member comes up for a promotion or assignment, he or she will be seen as less deserving where a performance evaluation reflects that he or she was not viewed as among the top rated in his or her unit.  The service member will often “voluntarily” provide adequate support if threatened with a non-support which might affect his or her performance evaluation and future chances for promotion.

[1]  The Defense Finance and Accounting Service is the entity providing service members with pay and allowances. It has specific guidelines for taking money under state court garnishment orders.  The Order is sent by DFAS to the service member (via his command) who has 90 days to state a reason why the Order is invalid or should not be followed.

Responding to a Request for Dependent Support In Bethesda, Part III

Responding to a Request for Dependent Support In Bethesda, Part III

In responding to a request for dependent support, the Marine may request a reduction or exemption from support if one of the following conditions exists

Responding to a Request for Dependent Support in Bethesda, Part II

Responding to a Request for Dependent Support in Bethesda, Part II

All marines are required to pay support according to a court order or separation agreement currently in effect. For more information, contact Anthony Burch.