Service Members Financial Obligations to Family Members

By Capt. Karina Barajas, Fort Bliss Legal Assistance Office

If you are going through a divorce, you might have heard that there are certain obligations that are required of you as a service member.  Army Regulation 608-99 sets out the family support, child custody, and parentage obligations for service members in the absence of a court order or written agreement that outlines those obligations. 

When am I obligated to provide financial support to family members?

 When you and your spouse decide to separate, this triggers financial support obligations under AR 608-99, unless either a written agreement or a court order exists that sets out what the financial support obligations are for either side during the period of separation and before the marital relationship is formally dissolved with an effective divorce decree. 

What does it mean to be “separated?” 

Being “separated” means that you and your spouse are currently living separately without the intention of reconciling.

What is required under AR 608-99?

Under AR 608-99, you are obligated to pay a certain amount to each dependent.  That calculation for each dependent (a pro-rata share) = (1/ total number of supported family members) multiplied by the applicable BAH RC/T – WITH rate.  The BAH rate that is used is the non-locality BAH rate, thus it does not depend on where you are located or the actual amount of any BAH you are receiving.  The amount of supported family members is determined by your dependents listed in DEERs. 

For example, if Capt. Rogers has three dependents (his spouse and two children) in DEERs, then he is obligated to give 1/3 of the BAH RC/T – WITH rate to his spouse and 2/3 equally to his children.  If his spouse is taking care of both children, then Capt. Rogers will give the entirety of the BAH RC/T – WITH rate to his spouse with the intent that 1/3 will go to child one, 1/3 will go to child two, and 1/3 will go to the spouse. 

What if we live in government housing?

If at the time you separate, your dependents live in government housing, then you will not be obligated to give that financial support, UNLESS your spouse (the dependent) moves out.  At that point, you will need to follow the equation above to figure out how much you are obligated to pay in financial support.   

What if our children are in my care?

If you are the primary custodian of your children during your separation, then the portion that you are obligated to turn over to your spouse is reduced to only the fraction owed directly to your spouse based on the calculation above.  You will not need to send the entirety of BAH RC/T – WITH rate if you are currently the primary caretaker of your children. 

How long am I obligated to provide financial support?

You are obligated to provide financial support until your divorce is finalized.  If you have been paying financial support consistently for 18 months, then you can ask a battalion-level commander to consider reducing the payment or even releasing you from the obligation.  Before a decision is made, the commander will inquire for more information from the supported spouse that might aid in the decision making.  After they have done so, the commander will decide if you should be released from paying “as a matter of fundamental fairness.”  See AR 608-99, para. 2-13c. 

What happens if I don’t pay financial support?

If you do not pay financial support, then your spouse can go through your chain of command or the Inspector General’s office and inquire as to why they are not receiving this payment.  At that point, you will be counseled and there will be a method of payment set up so that your spouse can receive this payment.  Repeated failure to consistently provide obligated support will be dealt with at the command’s discretion.   This may lead to disciplinary action because commanders are required to order you to pay in accordance with AR 608-99, if applicable, and failure to comply would be considered failure to obey a lawful order.  See AR 608-99, paras. 2-1 and 2-5.   

Is there anything I am obligated to give my spouse once we divorce?

There are a couple of provisions under the Uniformed Services Former Spouses Protection Act that allow for certain benefits to former spouses of military members.  These benefits are applicable if the former spouse has not remarried, and the specific requirements set out below apply: 

10/10/10 Rule

This first rule is applicable if:

  • The service member has at least 10 years of creditable service;
  • The marriage lasted at least 10 years; and
  • The time of creditable service overlapped at least 10 of those years.

With this rule, former spouses might be entitled up to 50% of the service members retirement pay, sometimes increased to 65% in limited circumstances to cover child support obligations and alimony.  This rule allows DFAS to become involved if there is a court order requiring retirement pay.

20/20/20 Rule

This second rule is applicable if:

  • The service member has at least 20 years of creditable service;
  • The marriage lasted at least 20 years; and
  • The time of creditable service overlapped at least 20 of those years.

If this requirement is met, the former spouse may receive medical, commissary, exchange, and theatre privileges.  Further, the former spouse may be entitled to TRICARE.  For TRICARE coverage for the former spouse, the amount of overlap needed is at least 15 years. 

It can be tricky to understand what financial obligations are expected of you while you and your spouse are separated prior to obtaining a divorce, so you may want to seek legal advice to ensure you are complying with the law and Army regulations.  To speak with an attorney in the Fort Bliss Legal Assistance Office on this or any other topic, please schedule an appointment by emailing usarmy.bliss.hqda-otjag.mesg.bliss-legal-assistance-office@army.mil, or calling (915) 568-7141 during LAO business hours.