Number 38, December 2001:
Mobilization and Family Support

By COL Mark Sullivan, USAR

Q. My Reserve outfit was just called up. Doesn’t 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 Soldiers’ and Sailors’ Civil Relief Act (SSCRA), that offers some protections to a servicemember 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.

Q. 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 servicemember doesn’t necessarily have a reduction in income when returning to active duty from civilian life. In many cases, base pay plus BAS and BAH may exceed the civilian salary. In fact, there is the chance that an argument could be made for increasing child support.

Q. Suppose that I have a reduction in pay. Doesn’t the law require a reduction in support if I have less income?

A. Not necessarily. There are many other factors that can play a part in the judge’s decision granting your motion to reduce support. What if the other parent just lost his or 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 you apply for a reduction in your home mortgage rate to 6 percent 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 SSCRA)? All of these circumstances would have to be considered by the court in ruling on a petition to reduce your support.

Q. What if none of the preceding applies and my income has been cut in half? Does my child support also get halved? Or does it get cut by the same dollar amount that my pay has been reduced?

A. The answer is neither. 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 a change in financial circumstances, the court will usually “wipe the slate clean” and start all over again to determine a fair amount of child support.

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 and the District of Columbia have guidelines that are usually used in determining child support (unless one or both parties have requested a variance). To learn more about child support guidelines, plus other information, go to www.supportguidelines.com.

Q. What if my ex-wife is taking me to court for an increase in support? Can those judicial proceedings be delayed?
A. You can apply for a stay of proceedings if you can show that your ability to defend in that case is “materially affected” because of your active-duty service. If the court finds this to be true, then the court must grant a stay. Remember that courts are reluctant to grant long-term stays of proceedings and tend to require servicemembers 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. You’ll probably need to sign and file an affidavit setting out all the facts and circumstances to help make your case for a stay of proceedings.

Q. If my ex-husband has sued me for alimony, can a default judgment be entered against me in my absence?

A. Once a suit is filed, notice of it must be served on the defendant. There are deadlines for filing the servicemember’s answer. When no response is filed on time, a default is usually entered against the defendant. Here are the main points to remember:

• SSCRA requires the plaintiff to sign and file an affidavit with the court stating that the defendant is not in the military service before a default can be taken. When the affidavit shows that the defendant is in the military, no default can be taken until the court has appointed an attorney to represent, in a very limited capacity, the servicemember-defendant. The court-appointed attorney will only represent the member’s SSCRA interests by determining if a request for a stay of proceedings should be made to allow the member an opportunity to appear and defend.

• It is up to you to hire an attorney to represent you for your case.

• If a false affidavit is filed, that can subject the filer to misdemeanor prosecution; the maximum punishment is one year’s imprisonment, a fine of $1,000, or both. Any such matter should be brought to the attention of the U.S. Attorney’s Office, as well as your civilian attorney.

• If a default is entered against you during military service or within 30 days afterwards, you can apply to the court to set it aside. You’ll need to show that you were prejudiced by not being able to appear in person; you have a legal defense to the claim; you’ve filed for re-opening within 90 days after ending military service; and you’ve made no prior appearance in court, either representing yourself or through an attorney.

Q. I took out a loan before the divorce, and now I can’t afford to make payments because I was called to active duty. Can SSCRA 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.

Q. How soon should I take action to request a change in child support or alimony?

A. It’s never too early. The real question is, when is 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 chance you’ll have for an early effective date for any change that applies.

Q. I can’t do this all by myself. Can someone go to court for me? What about a lawyer to help me?

A. If you are 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.