Military Divorce: Child Support

How does the San Diego Court Make Child Support Orders?

California has a statewide uniform guideline for child support orders, outlined in Family Code section 4055. The guideline uses a formula with inputs of each party’s gross income, the percentage of time the child or children are parented by each party, and other inputs as necessary to determine the net disposable income of each party.

In implementing the statewide uniform guideline, the court adheres to a set of principles listed in Family Code section 4053. These principles include:  

• A parent’s first and principal obligation is to support the parent’s minor children according to the parent’s circumstances and station in life.
• Both parents are mutually responsible for the financial support of their children.
• The guideline takes into account each parent’s actual income and level of responsibility for the children.
• Each parent should pay for the support of the children according to the parent’s ability.
• The guideline seeks to place the interests of children as the state’s top priority.
• Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.

A San Diego family law attorney can help you best present your case in court to get the child support orders you need.

How Does the Court Treat Military Pay in Making Child Support Orders?

The court takes into account the annual gross income of each parent, which includes “income from whatever source derived.” See Family Code section 4058. For a military member, this includes not only base pay, but all pays and allowances the member receives. Gross income includes special pays like hazardous duty pay, career incentive pays like career sea pay and aviation career incentive pay (ACIP), and retention bonuses.

Military allowances for food (BAS) and housing (BAH) are not taxable or subject to wage garnishment under federal law. However, they can be included in a party’s gross income for purposes of calculating child and spousal support. This is because family law support matters are within the province of state, not federal, law. See In re Marriage of Stanton (2010), 190 Cal.App.4^th 547. The court may even consider “in-kind” military benefits, like housing, when calculating gross income. This is because under California law, the court may consider “employee benefits” “taking into consideration the benefit to the employee, and any corresponding reduction in living expenses.” See Family Code section 4058(a)(3).

In order to determine what pays a service member is receiving, you should look to the service member’s Leave and Earnings Statement (LES). The LES is like a pay stub, but with more information. On the LES you can see what pays the member is receiving each month and the amount of each, as well as information about how many dependents the service member is claiming and how much accrued leave is available.

Can Military Pay be Garnished for Support?

Defense Finance and Accounting Service (DFAS) will garnish pay for child and/or spousal support if it receives an order from a court or a child support enforcement agency[1] that directs the government to pay money for support. This order cannot be the divorce judgment or an order directing one of the parents/former spouses to pay support. The order must direct the government specifically to withhold money and pay it out to satisfy the support obligation. In San Diego, the form needed to garnish child support is the Income Withholding for Support (form FL-195).

A San Diego family law attorney can help you follow the correct process to garnish pay.

Can the Military Make Child Support Orders?

Military courts do not handle family law issues, and don’t have the power to make child support orders. However, the military has an interest in ensuring that its members honor their family obligations and support their dependents. Failure to do so may bring discredit upon the military.

Accordingly, when a military command is notified that one of their members is not supporting his/her dependents, the commander will counsel the service member regarding his or her duty to support legal family members. Each service has a guideline fraction of gross pay that it expects the member to pay in family support. The fraction varies according to the number of dependents. For example, the Navy guidelines, found in Military Personnel Manual (MILPERSMAN) section 1754-030, state that a member with a spouse and one minor child is expected to pay ½ gross pay in support of dependents.

If, after formal counseling, the service member still does not support his or her dependents adequately, they may become ineligible to re-enlist, or may face disciplinary action or administrative separation from the military.

The military guidelines are used only in a case where there is not a state court order for support. The military will defer to an order that has been made by a court.

How Does Reserve Activation or Deployment Affect Child Support?

When reservists and national guard members are activated and leave their civilian jobs for active service, their incomes may change. For that reason, activated reservists and national guard members can request that their child support orders be reviewed before they deploy. If a child support agency, like DCSS, is enforcing the order, the service member can complete a Notice of Deployment – Request for Review of Child Support order (DCSS 0585) and submit it to DCSS along with supporting documentation. Within five business days, DCSS will review your case and, if appropriate, file a motion with the court to modify the support order. (It is important to remember that the review can result in an upward modification, a downward modification, or no change to the support order.)

If DCSS is not enforcing the order, the activated reservist can complete a Notice of Activation of Military Service and Deployment and Request to Modify a Support Order (FL-398), attach supporting documentation, and file the packet with the court. If possible, the court will schedule a hearing on the matter prior to your deployment. A San Diego family law attorney can help you get this done quickly and efficiently.

What if There is a Court Hearing While the Military Member is Deployed?

The Servicemembers Civil Relief Act allows service members to request a 90-day delay, or “stay” in the court proceeding. The service member is automatically entitled to one 90-day delay if he/she follows all the requirements. After that, it is up to the judge’s discretion to grant additional stays.      

Get the Expert Assistance You Need to Determine and Enforce Child Support Orders:

Child support calculation and enforcement can be complicated and difficult. It is important to present the right evidence to the court. When a parent is in the military, time is often of the essence. For these reasons, it is important to have a San Diego Family Law attorney who understands these intricacies and can advocate efficiently on your behalf.

[1]In San Diego, this agency is called the Department of Child Support Services (DCSS).