Legal Assistance for Military Personnel

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MOBILIZATION AND FAMILY SUPPORT

1. Q. MY RESERVE OUTFIT WAS JUST CALLED UP. DOESN'T SOME FEDERAL LAW SUSPEND MY CHILD SUPPORT PAYMENTS WHEN I'M BACK ON ACTIVE DUTY?

A. There's no law, federal or state, that stops or suspends payments of child support or alimony when you're called up. There is a federal law, the Servicemembers Civil Relief Act (SCRA), which offers some protections to a servicemember (SM) who is being deployed or mobilized while court proceedings are pending or who cannot assist in the preparation or presentation of his or her court case due to military duties. These will be explained further below.

2. Q. WELL, AREN'T THE COURTS SUPPOSED TO REDUCE MY CHILD SUPPORT WHEN I GO ON ACTIVE DUTY?

A. No. The reason for this is that a SM doesn't necessarily have a reduction in income when returning to active duty from civilian life. Let's look at the situation of Captain Jane Green, USMC. She is divorced and pays child support to her ex-husband. In civilian life she works as a public school teacher at $30,000 a year. But with 8 years of creditable service, when she goes on active duty her base pay alone is $45,000 a year. When you add in BAS and BAH, it comes to over $50,000 annually, almost twice her civilian salary. She probably wouldn't get a reduction in child support when she is recalled to active duty. In fact, her ex-husband might even apply for an increase in support!

3. Q. LET'S SUPPOSE THAT I HAVE A REDUCTION IN PAY. DOESN'T THE LAW REQUIRE A REDUCTION IN SUPPORT IF I HAVE A LESS INCOME?

A. Not necessarily. There are many other factors that can play a part in the judge's decision about granting your motion to reduce support. What if the other parent just lost her job? What if you have income from other sources -- such as interest, dividends or rental income? What if the child's needs have recently increased due to medical or educational reasons and the child needs MORE, not less, in child support? What if child support was set low to begin with (several years ago) and there hasn't been any increase since then? And finally, what about your own expenses -- maybe they will be lower while you are on active duty. What if you apply for a reduction in your home mortgage rate to 6% and you ask for a stay (that is, a suspension) of your loan payments due to your lower income on active duty (both of which are allowed by the SSCRA)? All of these circumstances would have to be considered by the court in ruling on a petition to reduce your support.

4. Q. WHAT IF NONE OF THE ABOVE APPLIES AND MY INCOME'S BEEN CUT IN HALF. DOES MY CHILD SUPPORT ALSO GET HALVED AS WELL? OR DOES IT GET CUT BY THE SAME DOLLAR AMOUNT THAT MY PAY'S BEEN REDUCED?

A. The answer is neither of the above . When a court considers a motion to reduce support, it looks to see whether there is a substantial change of circumstances since the entry of the last order for support. If there isn't, then the motion is denied. If there is, such a change in financial circumstances, however, then the court will usually "wipe the slate clean" and start all over again to determine a fair amount of child support.

5. Q. WHAT DOES THE JUDGE CONSIDER IF THERE'S A CHANGE OF CIRCUMSTANCES AND A NEW AMOUNT OF CHILD SUPPORT IS TO BE SET?

A. The judge will consider primarily the child support guidelines to see what the presumptive amount of child support would be if those were applied. All 50 states (plus the District of Columbia ) have guidelines, and these are usually used in determining child support (unless one or both parties have requested a variance). To get more information on child support guidelines go to this website: www.supportguidelines.com . There you can see what the rules are for child support guidelines in your own jurisdiction. You can also find useful articles there on college expenses, linking child support and visitation compliance, support for adult disabled children and the like.

6. Q. WHAT IF MY EX-WIFE IS TAKING ME TO COURT FOR AN INCREASE IN SUPPORT? CAN THOSE JUDICIAL PROCEEDINGS BE DELAYED?

A. You may be entitled to a stay of these proceedings. You may obtain a stay of at least 90 days when your request includes a letter or other communication that states the manner in which your current military duty requirements materially affect your ability to appear and gives a date when you will be available to appear. This must be accompanied by a letter or other communication from your commanding officer stating that your current military duty prevents your appearance before he court and that you are not allowed military leave.

7. Q. WHAT ABOUT A STAY AFTER THE INITIAL 90 DAYS? I MIGHT NEED MORE TIME!

A. If the court finds that your ability to prosecute or defend an action is "materially affected" by reason of your active duty service for a longer period of time, additional extensions may be granted. Remember that courts are reluctant to grant long-term stays of proceedings and tend to require SM's to act in good faith and be diligent in their efforts to appear in court. To prove that your ability to prosecute or defend a civil suit is "materially affected," you need to show the court that your military duties prevent you from appearing in court (or in any part of the legal proceedings, such as a deposition) to present or defend your case.

8. Q. THERE'S A LOAN I TOOK OUT BEFORE THE DIVORCE, AND NOW I CAN'T AFFORD TO MAKE PAYMENTS BECAUSE I WAS CALLED TO ACTIVE DUTY. CAN THE SCRA HELP ME?

A. If you file a petition with the court, the judge may "stay" or suspend payments on obligations incurred prior to active duty. To obtain relief, you must make application to the court during the period of military service, or within six months after release from active duty, and must establish that your ability to pay the loan is materially affected by reason of your active duty service. This not only applies to loans, but also to "any obligation or liability" that you incurred prior to military service, as well as any tax or assessment that comes due before or during your period of military service. The Act allows you to apply for "prospective relief," rather than waiting for the other party (creditor, former spouse, mortgage lender, etc.) to take action against you once you fail to make your payments.

9. Q. HOW SOON SHOULD I TAKE ACTION TO REQUEST A CHANGE IN CHILD SUPPORT OR ALIMONY?

A. It's never too early -- the REAL questions is, when's it too late ? As a general rule, you cannot obtain a change in child support that extends back before you filed your motion. These payments are due and, in general, cannot be modified by the court. Modifications are prospective only -- they apply to future payments. So the earlier you file that motion for modification, based on a financial change of circumstances, the better a chance you'll have for an early effective date for any change that applies.

10 Q. I CAN'T DO THIS ALL BY MYSELF -- I'M CARRYING A RIFLE AND SLOGGING THROUGH THE SWAMPS OF EASTERN NORTH CAROLINA . CAN'T SOMEONE GO TO COURT FOR ME? WHAT ABOUT A LAWYER TO HELP ME?

A. If you're on active duty, you may want to consult a legal assistance attorney at the base legal office. The child support enforcement agency can also help. Or you can hire a private attorney of your choice. Whatever your decision, you should do it as soon as possible. Your lawyer can answer many questions and help you to make a fair and intelligent decision about your choices, options and alternatives.

(Rev. 9/04)

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THE TAKE-1 SERIES OF CLIENT HANDOUTS IS A PROJECT OF THE NORTH CAROLINA STATE BAR'S STANDING COMMITTEE ON LEGAL ASSISTANCE FOR MILITARY PERSONNEL. FOR REVISIONS, COMMENTS OR CORRECTIONS, CONTACT COMMITTEE MEMBER MARK E. SULLIVAN, 600 WADE AVENUE , RALEIGH , N.C. 27605 , 919-832-8507, LAW8507@AOL.COM .

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