The military has loads of rules and regulations dealing with almost every aspect of its day to day management and operations. It should probably come as no surprise that it also has regulations relating to family support. When a couple separates, and either spouse is in the military, there are specific rules about when and how much support is supposed to be paid to the remaining family members.
The Navy Regulations and Policy specifically say that, “[t]he Navy will not act as a haven for personnel who disregard or evade obligations to their legal family members. All members shall provide adequate and continuous support for their lawful family members and comply fully with the provisions of separation agreements and valid court orders. Any failure to do so which brings discredit on the Naval Service may be cause for administrative or disciplinary action, which may include the initiation of court-martial proceedings, and may ultimately lead to separation from the Navy Sevice.”
That sounds pretty strict, right? Well, it definitely is. The Navy doesn’t mess around when it comes to a service member’s obligation to provide support for his family. But, if that’s the case, why are there so many military wives in Hampton Roads whose husbands are providing no support at all?
Military regulations versus state law
State law trumps any military regulations, but the laws of most jurisdictions in the United States (including Virginia) require people to support their spouses and children.
If you go to court asking for support (whether you’re looking for child or spousal support or both), the court is going to apply what is appropriate under Virginia law, not what the Navy regulations require. In most cases, at least in Virginia, our child support guidelines usually end up being less than what the Navy would require. There are no spousal support “guidelines” in our area, but still, like with child support, the state law is usually not nearly as generous as Navy regulations are.
So, when do military support regulations apply? They really only apply in cases where the amount of support hasn’t been ordered by a court of competent jurisdiction (meaning any circuit our juvenile and domestic relations court in the Commonwealth), or mutually agreed to. The Navy scale is only intended to provide interim support between the period of initial separation until the court has the opportunity to award support. In fact, the regulations themselves call the Navy scale an “administrative tool” that is not intended to be “used as the basis for any judicial proceeding.” It is designed to provide an appropriate level of support where there would otherwise be none, between separation and whenever the court has the opportunity to formally award support according to Virginia’s laws.
So who cares about military support regulations, anyway? They’re only temporary!
Yes, it’s true that the military guidelines for support are only intended to be used temporarily. Still, the fact that they exist at all is pretty cool. For civilians who separate and get divorced, there is no such requirement (though, of course, there is a legal requirement that applies equally to everyone, both military and civilian) that a certain amount of support be paid before the real support order is entered.
Often, the time that we see women feeling the most desperate is after separation and before divorce. It’s pretty common that as soon as a couple decides to separate, the higher earning spouse has his (or her) paycheck direct deposited into another bank account somewhere else, leaving the lesser earning spouse to fend for herself (and, usually, pay rent or mortgage and utilities and continue to feed the children). It’s pretty hard, especially when she’s already trying to grapple with the idea of the separation, find another place to live, hire an attorney, and keep things as normal as possible for the sake of the children involved.
Having the military guidelines in place is incredibly helpful for many, many military spouses. It’s only temporary, but it provides for a certain level of support at a time when many women don’t have any at all.
How much support will the military make him pay me?
The Navy requires different levels of support, depending on how many people are affected by the separation. For a spouse only, the level of support required is 1/3 of the total gross pay. For a spouse and a minor child, it’s ½ of gross pay. For a spouse and two or more children, 3/5 of gross pay is required. There are also requirements when no spouse is involved. For one minor child (and no spouse), the military service member must pay 1/6 of his gross pay. For two minor children, he must pay ¼ of this gross pay. For three minor children, he must pay a full 1/3 of his gross pay. Here’s a quick chart for easy reference:
Level of Support Required by United States Navy Regulations
Spouse Only 1/3 gross pay
Spouse and one minor child ½ gross pay
Spouse and two or more children 3/5 gross pay
One minor child 1/6 gross pay
Two minor children ¼ gross pay
Three minor children 1/3 gross pay
Misconduct
Unless there is some sort of judicial action that specifically removes the responsibility of one party to pay support for the party’s minor child, a parent owes a duty of support. It doesn’t matter whether you’re getting divorced or move somewhere else or don’t let him see the child (though that’s probably a terrible move for your custody case), he still has a duty to provide support to that child.
If it is found that a military service member is not supporting his child, it is considered misconduct, and the CO has a responsibility to take action on that misconduct.
As far as the Navy is concerned, there are only two situations where a CO could fail to act in a case where a military service member has been alleged of failing to support a minor child or children.
1. Where the location and welfare of the child or children concerned can’t be ascertained; and
2. Where it is apparent that the person requesting support for the minor child or children does not have physical custody.
Should I tell his commander that he's not supporting our family?
It’s tempting, especially if your soon to be ex husband or child’s father isn’t doing what he’s supposed to do as soon as he’s supposed to do it, to report his misbehavior to his command right away. Before you take any such action, it’s a good idea to talk to an attorney. Although the CO may take some action, and that action may get your soon to be ex or child’s father duly punished for his behavior, you should weigh the costs and benefits before you take any such action.
If your complaint gets him fired, for example, then what would you do? Not only is he out of the military (and there’s no similar civilian requirement that support be paid before there’s a court order or mutual agreement), he’s no longer earning benefits (and if your health insurance or your child’s health insurance is lost as a result, that’s a huge problem), paying into his retirement, or earning a pay check. Without a paycheck, how can he pay you support at all?
If your complaint gets him demoted, that also is a disservice to you. Demoted military service members (or military service members whose careers are permanently stalled by some misconduct) don’t earn as much money as their non-disciplined counterparts. It doesn’t take a mathematician to know that 1/3 of an E-5’s pay is less than an E-8’s pay. Or an O-1 versus an O-3 or whatever. Always, always, always talk to an attorney before talking to his commander.
When an enlisted military member is not providing support…
It is the commanding officer’s responsibility to be sure that anyone enlisted in his command is informed of Navy policy and expectations regarding support, and the consequences for failing to provide support. Married people who are at sea, or are stationed overseas are encouraged to make provisions for continuous allotments (like direct deposit payments) to be made so that the family obligations can be met at home.
If a commanding officer receives a complaint alleging that an enlisted member isn’t providing adequate support to their spouse or children, the commanding officer would immediately schedule an interview with the enlisted service member and inform him of the Navy policy regarding the support of family members.
If the complaint is considered “justifiable,” this is evidence of misconduct. In cases of misconduct, action has to be taken. It is possible, in cases like this, that the service member might not be able to reenlist or extend their enlistment, and they could also be subject to other administrative or disciplinary action that could ultimately result in their separation from the Navy.
When an officer is not providing support…
When an officer is the subject of the misconduct, a written complaint would also be formally filed. Depending on how the complaint is received by the Navy, a formal course of action would be followed. If the commanding officer received the written complaint, he would have a sit down discussion with the service member about the Navy’s requirements for support, and would then ask the officer for a written statement of his position and intentions. If it was received from the family member or a legal representative, the commanding officer would advise the officer of the Navy’s policy, and then would provide a brief summary of the officer’s intentions. If the complaint was received from a senior naval authority (like NAVPERSCOM), the commanding officer will obtain a written statement and return it to the naval authority, including a statement of the officer’s gross pay with any comments that the commanding officer feels are appropriate.
If the CO thinks that the officer has repeatedly disregarded the provisions of a valid court order, he can consider non judicial punishment or recommend that the officer face a court martial.
Again, it is always best to talk to an attorney before you take steps as serious as speaking to (or filing a complaint with) your husband’s commanding officer. Once you take these steps, you can’t take them back, and you may set in forth a chain of events that will be as harmful to you as to your husband. It’s definitely worth talking to someone with experience with military clients before moving forward.
Where to go for help getting support or a Virginia divorce
For many military wives, the first step towards getting “help” is by going to the local JAG or legal services office. Unfortunately, though, most military lawyers are not licensed to practice in the state where they happen to be stationed, and really only handle military-related cases. Divorce and custody cases are state issues, not military cases, and have to be handled by lawyers who are licensed in the state where the divorce will take place.
You need to speak with (and, probably ultimately, hire) an attorney who is licensed in Virginia but experienced with military divorce cases. Military divorces are unique, and have a number of different issues that civilian divorces don’t, so you want to be sure that you talk to someone with a background in handling military divorces. For more information about military divorce, you can request a free copy of our book for military spouses by clicking here. To talk to an attorney, you can either call and schedule an appointment at (757) 425-5200, or attend one of our monthly seminars, which cover tons of issues regarding divorce in Virginia.