Military Divorce and Child Custody
Like other matters of military divorce, child support can become more complicated when one or both parents are service members. Certain pay or benefits awarded by the military are not considered a divisible asset for the purposes of dividing property, but they may count as income when calculating child support. Also, certain benefits, like VA disability pay, can be garnished for the purposes of collecting child support.
New Mexico Financial & Family Law can assist both divorcing and divorced couples in matters of military child support. We can help you come to a child support agreement to include in the divorce decree, or we can assist with requesting an amendment to an existing decree, as well as other matters. Whether you’re a military service member or formerly married to one, we want to protect the well-being and interests of your children when it comes to financial support.
Contact us today to discuss your case during a risk-free, no-obligation consultation when you call (505) 503-1637 or contact us online.
Obligation to Support Family in the Military Code
One factor in a military divorce that many people do not expect is that the U.S. Military code expects service members to begin providing child support payments almost immediately following a separation or pre-divorce measure. This obligation to pay exists even in the absence of a court order mandating child support payment.
Depending on the situation, an interim child support agreement may be issued. The amount will be based upon the service member’s gross pay as well as their Basic Allowance for Housing.
Further, timely payment of child support is enforceable under the military code. A service member who is ordered to make payments may be penalized by their superior officer if they fail to uphold their agreement in a timely manner. However, enforcement is only subject to ongoing obligations, not payments in arrears.
New Mexico Calculates Military Divorce Child Support Amounts Based on Both Parents’ Pay
In New Mexico, there is no presumption as to which parent will pay child support. It may be possible that the service member receives child support from the other parent.
To calculate child support amounts, the Family Court will first establish a guideline amount. This amount is calculated using both parent’s pay and what the law assumes is a fair contribution. The expected contribution will be deducted in proportion to the amount of time the child spends with each parent, respectively. Then, the parent with the larger contribution will pay the remaining obligation to the parent with the smaller contribution, minus the difference in that parent’s contribution.
Can Military Disability Be Used for Child Support?
One confusing aspect of military pay is that some benefits cannot count as marital property, yet they still qualify as income for the purposes of calculating child support.
In the case of military disability — either military disability retirement or VA disability compensation — it can count as gross income.
It is also possible that a parent will request apportionment or garnishment of disability pay in order to receive their child’s support contribution.
Calculating a Service Member’s Gross Income
Military pay consists of a combination of compensation, allowances, and benefits that must all be considered when calculating the guideline amount for child support. There is, unfortunately, no such thing as a military child support pay chart, so the service member’s individual base salary from the pay chart will have to be added to their other specific income factors.
Factors to consider include:
- Base salary
- Housing allowance (will vary by location)
- Family commitments
- Pay grade
- Pay differentials (hazard pay)
- Other in-kind compensation, including meals, housing, etc.
Note that a service member’s tax return will exclude or severely reduce the reported income from some of these areas. For the purposes of calculating military divorce child support, clients will want to reference the Leave and Earnings Statement (LES) provided on an ongoing basis to the service member.
Limits to Maximum Payment as a Portion of Gross Earnings
The Defense Finance and Accounting Service (DFAS) sets a rule that no service member will be required to defer more than 50% – 65% of their gross disposable pay to child support and spousal support, combined. The exact amount will vary according to the circumstances. Consult with an attorney and refer to the DFAS website military child support FAQ for more information.
Let Our Experienced Lawyers Answer Your Military and Child Support Questions
Calculating child support obligations isn’t easy, and you may have concerns about ensuring that payments can be made in a timely fashion. There may also be a need to modify the child support amount or alter the existing arrangement, which can happen when child support and military deployment coincide.
No matter your circumstances, New Mexico Financial & Family Law is here to assist military service members and their families. Your children are some of the most important things in your life, and your duty as a parent is equal to that of your duty to your country in these respects.
We provide confidential, risk-free consultations and can assist military service members overseas. Schedule a no-obligation appointment today to discuss your case when you call (505) 503-1637 or contact us online.