Every single branch requires that their service members financially support their families. This includes children and spouses. In the Army, Soldiers' dependent support rules are governed by Army Regulation (AR) 608-99, Family Support, Child Custody, and Paternity. Regardless of separation, Soldiers are responsible for their families!
If you or your spouse isn't in the Army, check out our articles on the
If you already have a court order you need help understanding what the military will do to enforce it, read our article on enforcing court orders through the military.
If you need to understand how dependent support works in the Army, read on!
Soldiers' responsibilities include:
Maintaining reasonable contact with family members so that their needs and welfare do not become a matter of concern for the Army;
Conducting themselves in an honorable manner with regard to parental and spousal commitments and responsibilities;
Providing adequate financial support to family members; and
Complying with any court orders or written financial agreements.
Show me the Money!
As we said above, AR 608-99 requires soldiers provide financial support for their spouses and kids, even when there isn't a court order. But how much you ask? Read on!
What does the soldier have to pay?
Absent a written agreement or court order expressly addressing financial support, AR 608-99 provides for two types of support that Soldiers must pay.
An "Enhanced Payment" AND
Standard recurring monthly payments.
1. Enhanced Payments:
Under AR 608-99, Soldiers will pay an "enhanced payment" to their spouse. This payment is not the monthly payment, but an additional payment above the monthly payment. The enhanced payments are to ensure the spouse and family members have quick access to funds after a separation for food and other necessities – not simply housing – until they are able to start the separation process in a U.S. state court with jurisdiction to order support.
Enhanced payments are equal to 25% of the BAH II-WITH. Go here to learn more about the BAH II- WITH.
How long the enhanced payments continue depends on where the spouse lives.
For families where a U.S. state court the power to order financial support, the Soldier will make a one-time enhanced payment along with their first standard recurring payment as required below.
For families without access to a U.S. state court, the Soldier will make the enhanced payments until there is a written agreement or a court order for financial support OR the spouse gains access to a U.S. state court with the power to order financial support.
Soldiers satisfy the enhanced payment obligation by making a payment directly to their spouse. Soldiers may NOT make in-kind payments or substitute this payment. Payments should be made in a way that is trackable, like a check or money order. Specify clearly on the check or receipt that the amount paid includes (or is) this enhanced payment.
Enhanced payments must be paid directly to the spouse. In-kind payments are not permitted.
2. Standard Recurring Monthly Payments
In addition to the enhanced payment, AR609-99 requires Soldiers make regular recurring monthly payments. This amount is "a pro rata share of the Basic Allowance for Housing (BAH) II-WITH amount". The Army has a formula to help you figure out what-the-heck that means (Yay.... math). We will take the formula piece by piece.
One notable exception to the pro rata rule is when a Soldier stationed overseas and receives BAH solely on behalf of unaccompanied Family members who reside in the United States. In this case, the Soldier must pay the full amount of any BAH paid to the Soldier on behalf of those dependents, if it is greater than the BAH II–WITH rate.
How do I figure out the "total number of supported family members"?
The total number of family members includes ALL of the Soldier’s dependents. This can include:
A current legal spouse until the day a divorce is finalized (if you are a mil-to-mil couple, see below);
Your children together (including adopted children);
Children from a prior marriage or relationship.
People who aren't included?
Active duty spouses (unless required by written agreement or court order);
Previous spouses, even if you're paying alimony;
Anyone the commander has released from the responsibility to provide support for (see below).
What number do I use for the numerator of the equation?
The top number of the equation is the number of dependents in the spouse's care. This includes the spouse him/herself.
What is the “BAH II- WITH rate”?
It's called:
“BAH II-WITH,”
or BAH-Diff
or BAH Reserve Component/ Transit (BAH RC/T-WITH)
or non-locality BAHBAH II- WITH is 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.
Dependent support obligations are based on this standardized rate regardless of whether soldiers actually receive a different amount. You cannot rely on your the LES to determine the BAH II-WITH rate. The amount received for BAH will typically be different than this number. The BAH II-WITH rate is based on a solider's rank and it typically changes every year (as the service member receives raises and promotions). This means the support will likely increase every year, though in certain situations it could decrease.
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.
Examples!
Example 1 (no children): Tony is a civilian legally married to Lucy, who is in the Army. 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 II-WITH.
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 (Full custody of all children to Soldier): Same couple and situation as above, but Lucy, the soldier, has custody of all three children. The "total number of supported family members" is 4 (three children and Tony). In this case, the equation is 1/4 because Tony isn't maintaining the kids, Lucy is. Therefore Tony only get 1/4 of the Lucy's BAH-Diff.
Example 4 (Family in Base housing): Same couple and situation as above, but the kids and spouse all live in base housing. Lucy doesn't have to pay any monthly support. Remember though that she will still have to pay the "enhanced payment".
When does support start and end?
Support under AR 608-99 begins on the date the couple becomes separated as long as there is not an oral or written agreement or court order addressing support. Support ends:
when there is an agreement between the parties, OR
a court order; OR
in the case of a spouse, support has been paid for 18 months (talk to your command before you stop paying!).
Remember this support is intended to be a stop-gap. Get a court order!
How can the support be paid?
Payments should always be paid in a way that is traceable. This means check, money order, or a money transfer. Ideally Soldiers should write on the memo section that it is for dependent support, child support, or spousal support (as applicable) and what month it’s for. Example:
“Dependent support for May 2021”.
You should keep a log of your payments if your bank doesn’t do it for you. If you get a receipt, keep it. Never pay in cash. It's hard to prove you paid cash later on if you get accused of not paying.
If a soldier isn’t paying regularly it may be possible for the entitled spouse or parent to get their support through an involuntary allotment. See our article on enforcing support through the military.
Another option for providing support is through “in-Kind payments". Paying for any of the following may reduce or eliminate the total amount due under AR 608-99 (the value should be the same):
Rent;
Principal and interest due on a mortgage, as well as any associated property taxes and home insurance for that property;
Essential utilities such as gas, electricity and water.
If the family in government housing: No additional recurring monthly support is required (but don't forget the enhanced payment). However, if the civilian spouse and/or children move out, the Soldier will pay the pro rata share regardless of whether or not the Soldier is receiving BAH! (Solders, you probably want to move out of government housing too so your BAH will restart!;
In-kind payments do NOT include: telephone/cellular bills, cable/satellite television, car payments, or any other insurance not related to the property where the family resides.
When are payments due?
Payments must be sent by the 1st of the month for the preceding month (Pay April’s support on 1 May).
What happens when a couple is mil-to-mil?
If a couple is mil-to-mil, soldiers are not required to provide financial support to their spouse unless there is an agreement or court order requiring it. With regard to children, in the absence of an agreement or order, the Soldier will provide the following:
The active duty spouse has full custody & the children are NOT in government housing: The Soldier must provide the pro rata share for the children only to the military family member with custody.
The active duty spouse has full custody & the children are IN government housing: No support required for the spouse or kids.
Soldier has Custody of one or more kids: No support required, even if they don't have custody of all the kids.
When can the Chain of Command Eliminate or Reduce the Amount Owed?
As long as there is not a written agreement or court order addressing support, in limited circumstances, the battalion commander or Special Court-Martial Convening Authority (SPCMCA, usually the brigade commander) may reduce or eliminate the amount owed. However, even if the Soldier’s situation aligns with the exception(s) provided in the Regulation, it is still only discretionary and must be reviewed by the commander’s legal advisor. Some bases for a battalion commander or SPCMCA to excuse support include:
Order issued by a court without jurisdiction;
Income of spouse exceeds that of the soldier;
Soldier has been the victim of substantiated domestic abuse;
The supported family member is in jail;
Soldier has supported the spouse for 18 consecutive months after separation (clearly documented, see above for how to do this);
Supported child is in custody of another who is not the lawful custodian; or
As a matter of fundamental fairness. For more see AR 608-99, 2-14 and 2-15.
What will the Army do if a Soldier doesn’t Pay?
Commanders are responsible for enforcing AR 608-99. Commander cannot directly make a soldier pay, but they can punish a soldier if they don’t. This can mean administrative action or through the UCMJ (Article 15 or court martial). Commanders cannot order soldiers to pay arrears (the past due amounts). Spouses who complain to a commander should know that due to privacy rules they do not have the right to know if their soldier was punished for refusing to pay. Commanders typically do not like getting in the middle of their soldiers’ personal lives and are often hesitant to discipline in these situations.
Regardless if you aren’t being paid, complain! If the first of the month goes by and you still aren‘t paid, complain again!
What if we agreed to a financial support amount orally?
If your oral agreement is working, the Army won't get involved, but the oral agreement will only remain in effect until there is a dispute. Once either party expresses dissatisfaction with the arrangement, the Army will require support be paid in accordance with AR 608-99.
What are the rules surrounding written agreements (not court orders)?
"If a signed written financial support agreement exists, the amount of financial support specified in the agreement controls." AR 608–99 2-3(b).
A written financial support agreement is any written document evidencing an intent to create a binding financial support agreement. This can be a formal separation agreement, but it could also be a property settlement agreement, a letter, email, or a series of letters or emails. Ordinarily, informal forms of written communication (for example, text messages and social media posts) do not demonstrate an intent to create a binding agreement.
If the written agreement is silent as to the amount of financial support, then the pro rata share above applies.
If the agreement expressly states no financial support is required, then the soldier is not required to provide financial support.
What if we have a court order, but it doesn't specify a support amount for some or all dependents?
The answer to this question depends on who the support is for:
If the support is for the now ex-spouse, no support will be required unless it is expressly stated by the court.
If the couple is still married and the court order is silent on support, then the soldier may be required to provide support. Talk to your JAG office or commander.
If the support is for children, no support will be required ONLY if the soldier is expressly relieved of providing support. If the court order is simply silent on child support, then the soldier must provide the pro rata share as support.
If support is specified for some, but not all children, then the pro rata share will likely be required for the other children, particularly when those children are the result of a different relationship.
Civilian Spouse: My Soldier says he/she isn't receiving BAH (or BAH at the with dependent rate) so he can't pay this much, what do I do?
This is not your problem. The reg is clear that the soldier pays according to the formula. Tell them what they are paid is their problem. They still have to follow the rules (but maybe be polite, you catch more flies with honey, you know?). If they still complain contact their command.
Soldier: I’m not receiving BAH (or BAH at the WITH dependent rate), I can't pay this much!
If you are in government family housing you might want to move out so you can start collecting BAH. If you aren’t in family style housing, you need to get your allotments fixed. Soldiers who have legal and physical custody of their children, pay child support, and/or live in single-type Gov't quarters are entitled to BAH at the with-dependent rate. If your former spouse has custody and you are paying adequate child support (at least in an amount of your BAH-DIFF rate) you are authorized BAH at the with-dependent rate if not in Gov't quarters or BAH-DIFF if assigned single-type Gov't quarters. You can find this rule here.
Note: Single-type Gov’t quarters means not family-type Gov't quarters.
Soldier: That *&*^$^& cheated on me! No way I am giving her anything.
I'm so sorry. Your spouse is the worst. I am also sorry because you still have to pay support.
Have more questions? Reach out!
Want to stay updated on our latest articles? Subscribe and become a site member, it's free! We'll email you when new articles come out!
You can also like us on Facebook!
Comments