What you need to know about the Department of the Air Force's Dependent Support regulations during a martial separation or child support dispute
Each military branch has regulations requiring that their service members support their spouses, children, and any other dependents. If you or your spouse isn't in the Air Force or Space Force, check out our articles on the Army, Navy, and Marine Corps Regulations.
If you or your spouse is in the Air Force or Space Force, READ ON!
In the Air Force and Space Force, that regulation is DAFI 36-2906, Personal Financial Responsibility. In most cases the amount of financial support paid by the member, if any, is determined by a court order or a written agreement between the parties. Once a court has spoken on the issue or the parties have come to an agreement, DAF won't get involved in determining what the member's obligation's are (although in some cases they may help you enforce an order). But, what if you don't have a court order or agreement yet and you or your child need support now?
After you have made the decision to separate from your spouse, or after the birth of a new child when you aren't married, there is typically a gap in time before a court steps in and creates orders for spousal and/or child support. DAFI 36-2906, Chapter 4, Guidance to Members for Support in the Absence of a Court Order is where you look to find out what the member's specific obligations are. It isn't particularly long regulation, but it can be a bit confusing so read on for a careful explanation!
First things first.
Remember this is about supporting your kids,
not screwing over your soon-to-be-ex.
Now onto the regulation!
What if you don't have a court order yet and you need to know how much child/spousal support is due now?
In the absence of a court order, the member must pay the "pro rata share" for all dependents not under their care. The Pro Rata rate is determined by using the formula below. Basically, the member's Basic Allowance for Housing (BAH) Non-locality allowance at the with Dependent rate (also called BAH-Diff) is divided by the number of supported family members. Each of the shares of the BAH-Diff go to whichever spouse/parent is supporting that family member.
I know. I'm sorry, math.
The best way to explain this is through examples.
Example 1 (no children): Tony is a civilian legally married to Lucy, who is in the Air Force. Tony and Lucy are separated, but not divorced. They do not have a court order or other agreement regarding support. They have no children. The "total number of supported family members" is 1 (it doesn't include the service member). So, the equation is 1/1 and Tony receives 100% of the Lucy's BAH-Diff.
*Service members, before you freak out that isn’t fair, remember that the BAH-Diff is not your actual BAH allotment, which is based on your duty location, and you are likely receiving more BAH than this.*
Examples 2 and 3 assume the parents ARE NOT sharing custody. If you share custody skip to the Shared Custody section.
Example 2 (Full custody of all children to civilian spouse): Same couple and situation as above, but they have three children together. The "total number of supported family members" is 4 (three children and Tony). Tony, the civilian spouse, has custody of all three children in the separation. In this case, the equation is 4/4 since Lucy has four dependents and Tony is supporting all of them, including himself. Tony therefore will receive 100% of Lucy's BAH-Diff.
Example 3 (Children go to different parents): Same situation as above, but Tony and Lucy have two children together. Lucy also has a child from a previous relationship. Tony has custody of their two kids and Lucy maintains custody of her kid. The "total number of supported family members" is still 4 because Lucy is supporting four dependents (the bottom number is about Lucy, not Tony). The top number in the equation becomes 3 because Tony is supporting three of Lucy's dependents (the top number is about Tony). Therefore, Tony would receive 3/4 of Lucy's BAH-Diff (two children plus Tony). Lucy keeps 1/4 for the child she is still providing primary support for.
Note: Whose kids they are doesn't actually matter. It just matters that they are the service member's dependents and whoever is caring for the gets the support.
Shared Custody:
In situations where the member and the spouse share custody, the spouse will receive his or her entire pro-rata share, but the spouse will only receive the percentage of the children's pro rata share that corresponds to the amount of time they have the child. You can do the division of time based on days of the week or month, or based on a percentage of the year. Divide the child's pro rata share by the amount of time the parent gets.
Example 4: Same situation as Example 2, but Tony and Lucy share custody of the three children 50/50. Remember, there are four dependents, Tony and the three kids. Each one amounts to 1/4 of Lucy's BAH-Diff. Tony gets 1/4 of Lucy's BAH-Diff for his own support. The 3/4 of Lucy's BAH-Diff that applies to the children is divided between Tony and Lucy equally since they share time with the kids equally. Tony get 50% of 3/4 of Lucy's BAH-Diff and Lucy gets the other 50%.
Example 5: Same situation as Example 2, but Tony and Lucy share custody of the three children. Tony has the kids 80% of the year and Lucy has the kids for summers and holidays, equaling 20% of the year. First, Tony gets 1/4 of Lucy's BAH-Diff for his own support.
Note: In this situation, it is likely that Lucy will get the kids less often, but for longer periods of time, perhaps a whole month or two in the summer. Typically with child support, parents continue to pay even when the child is temporarily in their care, so the member would pays 80% of the kids' pro rata share 100% of the time. Another option, is instead for Lucy to Tony the whole pro rata share (4/4) when they are in his care (80% of the time) and nothing when they are in her care (20% of the time). The regulation is actually silent on this issue and an argument could be made for doing it either way, but the first choice is more common and has several advantages, such as the member will never have to worry about being accused of not paying and the spouse doesn't have to worry how to make rent when the kids are gone.
If you choose to do the standard route, then 3/4's of Lucy's BAH-Diff is divided between Tony and Lucy all year long. Tony get 80% of 3/4's of Lucy's BAH-Diff and Lucy gets 20% of 3/4's of her BAH-Diff. I know, that's confusing, see below for the actual numbers.
What is the “non-locality BAH rate” (BAH-Diff)?
“Non-Locality BAH,” or BAH-Diff, is simply a standardized Basic Allowance for Housing (BAH) without any adjustment for the member’s duty location. It remains the same regardless of where you or your spouse lives. Your spouse’s dependent support obligations are based on this standardized rate regardless of whether they actually receive a different amount. You cannot rely on your spouse’s LES to determine the non-locality BAH rate as the amount they receive will typically be different than this number. The non-locality BAH rate is based on your spouse’s rank and it typically changes every year. Below are the 2022 rates. You can also find this through a quick internet search. Be sure to use the “with dependent” rate for your calculation.
So, how much does Tony get? Let's assume Lucy is an E-6. The BAH-Diff with Dependent rate for an E-6 for 2022 is $1,201.20.
Example 1: Tony receives $1,201.20 because Tony is the only dependent and he is supporting himself. (1/1).
Example 2: Tony receives $1,201.20 because there are four dependents and Tony has primary of all of them (4/4).
Example 3: Tony receives $900.90 because there are four dependents and Tony has primary of three out of four them (3/4).
Example 4: Tony receives his full 1/4 share for himself = $300.30. The kid's share of the BAH-Diff is 3/4 equaling $900.90. Since Tony has the kids half the time, he gets half of the kids' share. This equals $450.45. So, in total, Tony receives $750.75. Lucy gets to keep the other $450.45.
Example 5: Tony receives his full 1/4 share for himself = $300.30. The kid's share of the BAH-Diff is 3/4 equaling $900.90. Since Tony has the kids 80% of the time, he receives 80% of the kids' 3/4 share. This equals $720.72. So, in total, Tony receives $1021,02 every month of the year. Lucy keeps the remainder.
*Spouses, before you freak out that it's not much money, remember this is intended to be a stop-gap measure, not a permanent solution. You really need to get a court order for child support.*
Who counts as a Dependent?
Who are considered dependents or "supported family members"? Dependents is defined as any person for whom the member receives an allowance from DAF. This typically is spouses and children, but could also mean parents or other relatives for which they receive a dependent benefit.
Individuals not included in the “supported family members” calculation include:
A member’s former spouse, even if they are paying alimony (So if Lucy was previously married to Mark and she is paying Mark alimony, this doesn't matter for the determination of how much she pays Tony);
A member’s present spouse if they are on active duty (So if Tony is also on Active Duty, exclude Tony from the formula, unless required by court order or another written agreement).
Are there exceptions?
When won't an Airman/ Guardian be required to provide support for a dependent?
Yes, members may not be required to support spouses when:
The civilian spouse makes more money than the member;
The civilian spouse is in jail;
The member has been the victim of substantial abuse;
The civilian spouse is on active duty;
The couple has been separated for more than 18 months.
The spouse and children live in military housing. A member is not required to provide any dependent support if the spouse and children live in government family housing. The provision of the house is considered adequate support.
When there is already a court order in place and it is silent as to financial support obligations (see more below).
When the squadron commander releases the member from the obligation of support. For information on when a squadron commander may release a member from the requirement to provide support see DAFI 36-2906 para. 4.1.2.3.
Exceptions 1-6 do not impact the requirement to support dependent children.
If the member is receiving the BAH-with dependent rate AND the only dependent is the spouse AND the member is not required to pay dependent support for any of these reasons, then they MUST stop the BAH at the with-dependent rate.
Are there exceptions when a member could pay more?
Yes, if a commander determines that the provisions of DAFI 36-2906 do not meet the specific facts of the member's situation AND there is no legal separation agreement or court order, AND the commander determines the BAH-Diff rate is not adequate in the member’s specific situation, the commander MAY refer to the individual’s state child support guidelines to determine how much additional support is required.
How long does this support last?
The member is only required to support a spouse under this formula for 18 months. After that time, a squadron commander can release them from their dependent support obligation for the spouse only. DAF considers 18 months sufficient time for the spouse to get a proper court order.
The member must continue to support their dependent children.
I have a court order, but it doesn’t provide an exact amount of money, what do I do?
Order Type 1 (Speaks to Financial Support): When the court order directs that the member provide financial support on a periodic, monthly, or other continuing basis (meaning, not just a onetime payment), but does not provide an amount of money then use the pro rata share formula mentioned in paragraph 2 to determine how much to pay.
Order Type 2 (Silent as to Financial Support): When a court order contains no language directing or suggesting that the member provide financial support to family members on a periodic or other continuing basis, this order is considered silent on spousal support obligations. In this case, a commander may release the member from the requirement to provide financial support for those family members. Review DAFI 36-2906 para. 4.1.2.3.2 for when a member can be released from their support obligations for this reason.
What can the support be used for?
Literally anything. It’s up to the dependent to decide how to use the money. Just remember this is the only money the service member is required to provide until/ unless a court says otherwise.
Okay, but what if the member still doesn't pay?
If there isn't a court order, the spouse can request the assistance of the member’s commander. Commanders have no authority to direct a garnishment or directly cause the member to pay. At best, the commander can punish the member for nonpayment under Article 92, UCMJ by taking various adverse actions. This may coerce the member into paying.
Many commanders are incredibly uncomfortable getting in the middle of their subordinate's divorce and are hesitant to punish for nonpayment. While they can do this, it isn't incredibly common.
Civilian spouses should view the pro rata rate as a stop-gap measure, not a permanent solution. Both members and spouses should attempt to get a court order as soon as feasible.
If you already have a court order that needs enforced, refer to our article on enforcing court orders.
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