Garnishing Wages from Military Pay for Child or Spousal Support

All parents are obligated to support their children. When parents are divorced or have never been married, that obligation is usually formalized by an order for child support issued by a state court. While in some circumstances, an obligor (parent who owes child support) can send payments directly to the payee, payments are usually made by income withholding from the obligor’s paycheck. Income withholding is sometimes referred to as garnishment, and military pay follows these same rules.

Many of our military divorce clients have questions about wage garnishment and military pay, military retirement pay, or military disability pay. The rules are somewhat complicated and are fact-dependent; the general answer is that yes, military pay can generally be garnished to pay a child support or spousal support obligation. Just how much can be garnished depends on the type of pay, whether the obligor has other support obligations, and whether the obligor is up-to-date with support payments.

How Much Military Pay Can be Withheld for Support Payments?

There are two primary factors in determining how much Defense Finance & Accounting Service (DFAS) will withhold from military pay for a support order: whether a military servicemember or retiree has other support obligations not covered by the support order, and whether they are behind (in arrears) on payments.

If you are not providing more than half the support to dependents who are not covered by the order, and you are not in arrears regarding support, up to 60% of your pay can be garnished for support.

If you do provide more than half the support to dependents who are not covered by the order, and you are not in arrears regarding support, up to 50% of your pay can be garnished.

If you are not providing more than half the support to dependents who are not covered by the order, but you are in arrears regarding support, up to 65% of your pay can be garnished.

If you do provide more than half the support to dependents who are not covered by the order, but you are in arrears regarding child support, up to 55% of your pay can be garnished.

In short, having other support obligations will reduce the maximum amount of a garnishment, but being behind on support obligations will increase it.

Requirements for Withholding Orders

Submitting a copy of the order for child support is not sufficient. That order details the obligation between the support obligor and the payee. DFAS needs to receive an order that directs the government, as the obligor’s employer, to withhold money from pay and make payments toward satisfaction of the support order.

The order for withholding must contain certain information, including:

• The obligor’s full legal name
• The obligor’s Social Security number

Federal regulation has been amended to expand the definition of “child support” for garnishment purposes. The withholding order can now direct the federal employer to withhold court costs, administrative fees, and attorney fees that are owed by the obligor as part of the child support or spousal support case.

Allotments for Support Payments

If the parties are able to come to an agreement regarding spousal support and child support, allotments are an easy way for the servicemember to ensure that the payments are being sent and received.

This method helps protect the servicemember from any allegations that they have not been paying their support obligations, since DFAS will have a record of the allotment made each time. It also helps streamline it for the obligee, as the money is automatically taken from the obligor’s paycheck and sent to the obligee.

In order to set up the allotment with DFAS, the servicemember will need to provide DFAS with the obligee’s banking information, such as account and routing numbers.

Garnishment of Military Retired Pay for Support

If a child support or spousal support obligor is retired from the military, their retired pay can be garnished to pay support. The process is initiated by sending DFAS a certified copy of the order for child support or spousal support, along with DD Form 2293 (Application for Former Spouse Payments from Retired Pay).

What if the obligor is the former spouse of the retired servicemember, and the servicemember is the recipient of support? Is it possible to garnish the share of military retirement funds awarded to the former spouse? The short answer is no: military retirement awarded to a former spouse is not subject to garnishment for any reason, even child support. This could create a circumstance where a former spouse receives direct military retirement payments ordered in a divorce, but now owes child support to the retired servicemember from whose service those payments originated. An experienced military divorce lawyer may be needed to help the retired servicemember in this scenario.

Garnishment of VA Disability Benefits for Support

VA Disability payments are not generally subject to garnishment for child support. However, there are exceptions. Some veterans who are eligible for military retired pay choose to waive a portion of that pay in exchange for receiving VA Disability benefits. The portion of VA Disability benefits received in lieu of military retired pay is subject to garnishment for support payments.

That said, there are exceptions to this exception. If the benefits are paid to a service member without a VA waiver, they may not be garnished to satisfy a support obligation. It can be difficult to know at a glance if your pay, and how much of your pay, is subject to garnishment.

If you have questions about whether your pay or benefits (or those of your child’s other parent) are subject to garnishment for a support obligation, we invite you to contact Brinkley Law Firm. We will help to clarify your rights and obligations and protect your interests.