Reservists

Recently Activated U.S. Military Reservists
and Child Support Issues
[Last Updated November 15, 2003]

NOTICE

We are NOT lawyers. Mr. Rogers is an economist and expert witness on child costs and child support guidelines. The following information is generally available to the public. It is only for general education purposes and is NOT LEGAL ADVICE. An attorney should be consulted for case-specific issues.

The Problem
Due to recent activation of U.S. military reservists for homeland defense and support of activity in Afghanistan and Iraq, many child support obligors that are reservists have unexpectedly lower income going from civilian pay to reservist pay. Yet, child support obligations do not automatically adjust to the new circumstances. It is very important to immediately file for modification of child support orders. There are several reasons:

Under federal and state laws, child support arrears cannot be modified. Once arrears accrue, no court has authority to "erase" child support debt because of these legal prohibitions. The child support obligor is stuck with paying arrears that accumulated during active service, and which he may not be able to afford. If a reservist is activated for lengthy periods, the arrears can run into thousands or tens of thousands of dollars if the support order was established on high, civilian pay. The federal law that precludes modifying arrears was sponsored by Senator Bill Bradley and is often called the “Bradley Amendment” to the federal Social Security Act.

Child support arrears cannot be discharged in a bankruptcy.

States now track many if not most child support payments through a central registry. When arrears develop, states may implement automatic revocation or suspension of state issued licenses. This includes not only drivers licenses but also professional licenses (such as for pesticide applicators and doctors) and even hunting and fishing licenses. Reservists with child support obligations that have been shipped out without first modifying child support may return to find they cannot drive legally nor conduct their business.

States generally allow child support orders to be modified back to the date the modification request is filed. Not before. Therefore it is important to file a written petition immediately to modify child support in the county having jurisdiction.

Neither the federal government nor the states have adequately prepared for assisting reservists on these issues. The U.S. Department of Health and Human Services (HHS) is in charge of regulating the states on this, but has not put together the specific information needed by affected reservists, nor has the Department of Defense prepared information packages. The limited information from HHS is here

What Do
This issue is only just obtaining national and state attention. Resources for reservists are only beginning to be pooled. Information is likely to be updated frequently regarding the availability of resources for reservists on these issues.

Child support is not modified automatically when income either rises or falls. The reservist child support obligor must file a written petition to modify the child support award. Child support is a legal process and legal procedures must be followed. A phone call to a federal or state legislator cannot fix the problem. Only a court order can, and the court can only issue the needed modification after proper legal procedures have been followed. That includes filing a written petition, notification of the petition to the parent receiving the child support, and a hearing. The hearing can either be a formal court hearing before a family court judge or, if both parties do not object, before an administrative judge that can expedite the process.

Most states have either a state office that has “fill in the blank” forms for child support modification or other agencies that have such forms. These can either be Child Support Enforcement Agencies, legal aid types of organizations, or even a county clerk's office. As an example, the Fulton County, Georgia Clerk of Superior Court runs a pro se help center. A pro se is a self represented person in court it is Latin for “on behalf of one’s self”). The following pro se center has a web site with these forms.

Each state generally uses the same forms within all counties. If you can obtain forms used in one county, most likely they can be used in another county in the same state if the “style” of the case is changed to reflect that county. (Ask the person providing the form.) The “style” of the case is simply the standard header information at the top of each court form (the plaintiff, the defendant, the case number, the name of the court and county, and the name of the pleading).

Important: The package that the Fulton County pro se center makes available has some incorrect information that could discourage reservists or indicate that they have no right to modify child support. Other states or counties’ web sites or information packages may have the same incorrect information. Specifically, the Fulton County web page and package says that an obligor cannot ask for a child support modification if there has been a ruling or request within the last two years. Some states may also have a two or three year “stay” on modifications. In fact, all states have an important exception to this rule. If there has been a “material change” in circumstances, a party has an unequivocal right to petition for a modification in child support. The material change can be a variety of things but it clearly includes a significant change in either parent's income. So, a reservist with unexpectedly reduced income has a right to ask for a child support modification no matter how recently one may have been heard.

States offer only limited help for reservists with child support obligations. The state can handle the legal work only under certain conditions. The circumstance when the state can most readily assist is when the state already has the reservist's case as part of its Title IV-D case load. That is, the obligor already has a case worker with Child Support Enforcement. If so, then the reservist should both call and mail a written request for an immediate modification of child support. Send the request by certified mail. Follow-up may be slow depending on the state's backlog but the service would be essentially free. Check with your local caseworker to confirm the proper procedure.

If a reservist is not already part of the state's case load, states generally allow either parent involved with a child support obligation to request state child support legal services. However, states generally offer these services on an “all or nothing” basis. You sign up for the whole package of assistance. This would include having the state put the payment on an automatic income deduction order (IDO) with the employer. It likely would also put the obligor on a automatic administrative modification schedule: generally, an administrative modification every three years based on the state’s child support guidelines. States do allow obligors to have hearings before a judge if either party does not like the outcome of the administrative hearing. Again, these modification services are essentially free but usually come with baggage. Each state’s child support enforcement web site likely has an application for these services. As an example, click here for the application for these services in Georgia. One should note that, based on the web site commentary, Child Support Enforcement agencies are more oriented toward helping the parent receiving child support than the parent paying it. Direct discussion with local agents might be important for getting a feel for how well they will help reservists needing help prior to signing up for services.

Private modification options means hiring an attorney. This is the most costly up front option but is likely the speediest solution to getting a modification of the child support award. However, the JAG serving a reservist should be able to handle all of the legal work in the same manner as a private attorney. This is likely the best option. A word of caution. JAGs have generally been trained for prosecution. The role of being a "helper" for child support modification will likely be new. The reservist should do his or her "homework" to make sure the JAG has done his or her homework, too.

It is disconcerting that these pages, allegedly to help the National Guard and Reserves during activation, have nothing about child support modification issues. Let them know if you would expect to see more help posted.

Employers are limited by the Consumer Credit Protection Act to a maximum percent of a payroll employee’s earnings for each paycheck. If a reservist is having child support withheld automatically because of a court order, when income falls, the deduction may easily exceed federal limitations on employer withholdings. If you think your employer is withholding too much, check out the web site maintained by the U.S. Department of Labor which enforces the Consumer Credit Protection Act. You may want to take this information to your attorney. Federal ceilings on withholding can be an argument for your attorney to use to limit the child support award to not exceed these ceilings.

You can find information about who your representative and senators are at a voter resource web site, Vote-Smart. Go to this site and enter your zip code in the search engine for your elected officials. This site has mailing addresses, phone numbers, and email addresses of all of your major elected officials.