by Pamela McArthur
Legal Office
From time to time, Legal Assistance clients raise
issues surrounding the enforceability of their alimony or child support against
a delinquent service member.
Service members also frequently question the
enforceability of consumer debts by an involuntary taking of their military
pay.
This article details the general requirements and
procedures of enforcing the unpaid amounts through involuntary allotment and/or
garnishment of the service member’s military pay.
There are two ways to collect past due alimony and
child support from military personnel:
garnishment and involuntary allotment.
Garnishment is the seizure of a soldier’s military pay
or other assets, such as a bank account, for the purpose of satisfying the
soldier’s debt.
All pay after taxes is garnishable, including base
pay, hazardous duty pay, severance pay, cash awards, retired pay, etc., but not
allowances.
All states allow garnishment to enforce child support
obligations, but not all states allow it to enforce spousal support
obligations. Check you own state laws,
if you are seeking spousal support.
To use garnishment, you must:
That’s about all there is to it. Once the garnishment order has been
processed, DFAS will send you up to 50 percent of the soldier’s disposable pay,
if the soldier is supporting a spouse and/or dependent child; or up to 60
percent, if the soldier is single with no dependents. An additional 5 per cent will be added to each maximum limit if
the order shows that the soldier is 12 weeks in arrears.
The garnished payments will continue until the
garnishment order has been satisfied, until the soldier goes back to court and
has the court stop it, or the soldier’s military pay stops.
Garnishment can also be used to collect past due
support from federally employed civilians. The process is substantially the same, requiring the court order
with the garnishment language, service on DFAS, etc.
Involuntary Allotments may also be used, if the
soldier is at least two months behind in court-ordered alimony or child support
payments, if the payments were required to be made through a state official,
such as the Clerk of Court or Child Support Enforcement Agency (CSEA).
To start an allotment, an authorized state official,
such as the CSEA or the court, must notify the DFAS that the soldier is two
months behind in support payments. The
state official must also provide a certified copy of the court order.
The DFAS will forward notice of the allotment request
to the soldier and the soldier’s commander, and will begin enforcing the allotment
30 days after the date that notice is given to the soldier.
The maximum amount of the allotment may not exceed 60
percent of the soldier’s salary, unless the soldier is more than three months
behind in which case it can be 65 percent.
The allotment order may include both the arrearages and also the amounts
for current support.
The soldier may not stop the involuntary allotment
without the consent of an authorized state official or the court.
Before 1995 it was very difficult for creditors to
collect debts owed by debtor- soldiers who had moved from the local
jurisdiction. After passage of the
Hatch Act Reform Amendments, however (effective 1 January 1995), creditors have
a much easier way to force soldiers to pay their debts.
All the creditor needs to do to collect debts from
soldiers is obtain a court judgment that complies with the requirements of the
Soldiers’and Sailors’ Civil Relief Act, attach a certified copy of the final
judgment to application form (DD Form 2653), and send the paperwork to the
Defense Finance and Accounting Service (DFAS) processing center in Cleveland,
Ohio. DFAS notifies the soldier
involved and starts taking the money out of the soldier’s pay 90 days later if
the soldier doesn’t raise a valid objection.
Only a few objections are considered valid:
a. If the
court judgment was not certified within 90 days of presentation to DFAS;
b. If the
judgment does not explicitly state that the court had jurisdiction over the
soldier and that the creditor complied with the requirements of the Soldiers
and Sailors’ Civil Relief Act; or
c. If the
soldier establishes that the debt has already been paid or discharged in
bankruptcy.
The allotment may also be disapproved if the soldier’s
commander determines that the soldier’s failure to appear in court was due to
military exigencies, but that is extremely rare.
As expected, creditors eagerly took advantage of the
new law. By July 1995, the Defense
Finance and Accounting Service (DFAS) averaged 1000 applications per month for
such
allotments.
Clearly, it is more important than ever that soldiers
resolve financial disputes before moving to a new duty station. If the dispute can’t be settled before
moving, the soldier should keep track of the dispute until it has been finally
resolved; and if a lawsuit is filed, the soldier should respond immediately, to
make sure the court hears both sides of the story before rendering judgment.
Remember, each case is different. This summary gives you general information
only. It is not intended to substitute for talking with a lawyer.
Eligible clients (service members, dependents and
retirees) may consult a legal assistance Attorney at the Legal Services Branch
by calling 732-532-4371 and setting up an appointment. You may also view this, and other material
and articles related to your personal legal affairs, by going to the website at
http://www.legal-assistance.monmouth.army.mil.