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Veterans & Reservists in Family Court

This guide is for families with a parent who is a current or former military member.

It has legal information about Family Court issues, including: how to change a child support order if your income has changed, how child support works with veterans disability & retired pay, and how to change custody & visitation.

Can I get a free lawyer for my child support case?

There are no free lawyers for child support cases, unless you are the noncustodial parent and you are at risk of going to jail for not paying. If this happens, the court may appoint, or assign, you an attorney at no cost to you. Custodial parents are not given attorneys in child support cases. All parties can hire private lawyers at their own expense.

My job or income has changed. How can I change my child support order?

The court will not automatically lower your order. You must ask the court to modify, or change, the order. You can do this by filing a petition for downward modification at the same Family Court that decided your last child support order.

If you are a reservist or in the National Guard and your active duty pay will be less than at your civilian job, then you can file a petition for downward modification to ask the court to lower the amount of child support you pay. You will have to show the court proof of the change in your income.

I want to change my child support order. What kind of proof do I need to show the court?

When you go to court, you must bring proof that your situation has changed. If you lose your job and ask for a downward modification, you will need to show the court that:

  1. You did not lose your job through your own fault. For example, you did not quit by our own choice, or you did not get fired for cause (for a legitimate, specific reason), and
  2. You have made efforts to find a job with income at the same rate of pay or higher.

You must also bring any other proof requested by the court.

You can ask the court to change your support order back to the date when you filed the modification petition. You must continue to pay the same amount of child support on the order until the court makes a different child support order.

The court may look at the amount you earned before your situation changed and decide that you could make more income than you do now. If this happens, the court might not change your child support order.

What if I am on disability and ask for a downward modification of child support?

In addition to what is listed on page 1 of this guide, you may also need to show the court:

  • Disability benefits letter (from Veterans Affairs or Social Security Administration); and
  • Certified medical records from your doctor stating your diagnosis (what the doctor thinks is happening), prognosis (what the doctor thinks will happen), and ability to work; and
  • Any other proof asked for by the court.

How do my VA benefits work for child support?

Your VA disability benefits count as income when the court calculates child support. However, your child support payments can only be garnished (taken from) your VA disability benefits if you waived (gave up) part of your retired or retainer pay in order to get VA disability benefits. If you receive payments without a VA waiver (for example, a retiree with a disability rating of 50% or higher) then your child support will not be garnished from your VA disability benefits.

What is an apportionment?

An apportionment is a way to get money for child support payments from a veteran’s retirement or disability
pay. If you have an apportionment, then the Department of Veterans Affairs will pay your child support payment
directly to the custodial parent or your child. The VA decides if your benefits will be apportioned. The VA does not need your permission to do this. Your benefits may be apportioned if your child does not live with you and you are not paying the child support court order.

The VA will look at different factors to decide if your VA benefits should be apportioned. Some of these factors are: the amount of veterans benefits you receive, other income you received, and your financial needs.

An apportionment is not the same thing as a garnishment. If there is a court order for child support, then an apportionment is another way to collect child support from the veteran’s retirement or disability pay.

What is the Uniformed Services Former Spouse Protection Act (USFSPA)?

The Uniformed Services Former Spouse Protection Act (USFSPA) is a law that applies to all retired military members. USFSPA allows the Department of Veterans affairs to take direct payments of your child support from
your retired pay without your permission. These payments are collected by the Department of Defense Finance and Accounting Service (DFAS). DFAS is the agency that pays all Department of Defense retirees and annuitants.

Can DFAS take child support from my retired pay?

Yes. DFAS can take child support from your retired pay when you have a child support court order and the state agency manages the payments for you and the other party.

I am a current or former military member. What counts as income for child support?

All pay and allowances count as income for child support calculations. This includes:

  • Military active duty pay (basic pay, bonuses, and Basic Allowance for Housing (BAH) and Basic Allowance for Substinence (BAS));
  • Military reserve pay;
  • Military retired pay;
  • Federal Department of Defense (DOD) civilian employee pay and civilian retirement pay; and Veteran benefits.

However, the maximum amount of money that can be taken out of your retired or retirement pay depends on
your disposable income. Disposable retired pay is the total monthly retired pay you can get minus many possible deductions. You can find out more about what is your disposable retired pay online.

I am the custodial parent. How can I get current child support payments through USFSPA?

You must apply for benefits under USFSPA and get approved. You need a final child support court order and the court order must state that the child support payment can be paid from the noncustodial parent’s disposable retired pay.

If you have a final child support order, then you may apply for direct payments with a DD Form 2293 application. Download the DD Form 2293 application online.

Read how-to information for the application here.

You must complete the application and submit a certified copy of the child support court order by fax or email and send it to the Department of Finance and Accounting Services (DFAS) at:
DFAS Garnishment Law Directorate
P.O. Box 998002
Cleveland, OH 44199-8002
Fax: 877-622-5930 (toll free)
Phone: 888-DFAS411 (888-332-7411)

For more information about the application process, visit the DFAS website.

How can I get a certified copy of the child support court order?

You must apply for benefits under USFSPA and get approved. You need a final child support court order and the court order must state that the child support payment can be paid from the noncustodial parent’s disposable retired pay.

You can contact the Clerk of Court or the Records Room of the Family Court where your case was decided to get a
certified copy of the child support order. To find court information, visit the New York State courts website.

You may have to pay a fee for any copies and postage by certified check or money order. This means you pay in advance for the certified check or money order. You can buy a money order at any post office, or you can get a certified check or money order from your bank.

I am the custodial parent. How can I get past due child support (arrears) through USFSPA?

You can apply for direct payment for child support arrears from DFAS. Arrears are past due child support. You can submit a DD Form 2293 application with a certified child support court order that lists child support arrears. The order must have been issued in the last 2 years.

If you have a court order that lists child support arrears, then you may apply for direct payments with a DD Form
2293 application. Download the DD Form 2293 application online here.

Read how-to information for the application online here.

You must complete the application and submit a certified copy of the child support court order by fax or email and
send it to the Department of Finance and Accounting Services (DFAS) at:
DFAS Garnishment Law Directorate
P.O. Box 998002
Cleveland, OH 44199-8002
Fax: 877-622-5930 (toll free)
Phone: 888-DFAS411 (888-332-7411)

For more information about the application process, visit the DFAS website here.

How do I mail documents to DFAS?

First check that you have filled out any required forms. You must submit a certified copy of the child support court
order by fax or email and send it to the Department of Finance and Accounting Services (DFAS) at:

DFAS Garnishment Law Directorate
P.O. Box 998002
Cleveland OH 44199-8002
Fax: 877-622-5930 (toll free)
Phone: 888-DFAS411 (888-332-7411)
For more helpful information, visit the DFAS website here.

What if DFAS gets more than one court order and the orders say different things?

If DFAS gets more than one court order and the orders have different amounts of child support, then DFAS will withhold the larger amount from your retired pay. However, DFAS will only pay to the other party the lower amount that is listed. DFAS will keep the difference of the amounts until you send them an order that is certified to be valid by you and the other party. Then DFAS will pay the other funds per the court order.

If you send DFAS a court order that has different retired pay award amounts in the same court order, then DFAS
will pay the lower amount. If you disagree with the amount paid, then you must send DFAS a new court order that lists the correct amount.

If DFAS gets applications from more than one party with a child support order against you, then payments are made on a first-come, first-served basis.

If DFAS gets both an application for direct payments under USFSPA and a garnishment order for support from the same party, then DFAS will pay whichever is served first. Served means properly delivering the court papers. For more information about service, see Family Legal Care’s guide Serving Court Papers.

How long does it take for DFAS payments to start pulling from my pay?

DFAS starts to pull payments 90 days after they get a completed application from the other party. Payments are done once a month when retired pay is paid. Direct payments must line up with the monthly payment cycle. DFAS will send you a letter when the other parent submits an application for payments of child support. The letter will have important information, including:

The month that payments are scheduled to begin;
A copy of the order; and
Notice that it is your responsibility to notify DFAS if the court order changes.
If you do not agree with the DFAS decision to take child support directly from your retired pay, you have 30 days from the date the notice was mailed to you to provide legal documentation showing why payments should not begin. No direct payments can be made until after the 30-day notice period has passed.

You may ask DFAS to stop direct payments under the USFSPA if you can prove that the other party’s court order is legally defective (not valid) or has been changed.

If my child support changes, will DFAS automatically change the amount taken from my retired pay?

No. If your child support court order has changed, then it is your responsibility to notify DFAS. DFAS contact information is on page 4 of this guide. If you were paying child support by voluntary allotment (when you were in
the military), and then the order changes so that payments go directly to the other party (after you leave the military), then it is your responsibility to stop the voluntary allotment with DFAS. DFAS will not stop a voluntary allotment unless you ask. If you overpay the other party because an allotment is not cancelled, DFAS cannot recover the overpayment.

I am retiring from the military and still owe child support. Will the current order automatically apply to my retired pay?

DFAS gets notified when you retire, but it can take between 30 to 60 days for DFAS to create the retired pay account. The retired pay account must be created before DFAS can start withholding payments.

If you are retiring from the military and you owe child support, call the Customer Care Center at 888-DFAS411 (888-332-7411) to avoid delays in your child support payments. If the New York Child Support Enforcement agency is involved, you can also notify the agency that you are retiring. Call the New York State Child Support Helpline at 888-208-4485.

It is your responsibility to make sure all child support payments are made in full and on time.

I want custody of my child. Is my military status important?

When two parents want custody, a judge must determine what is in the best interests of the child. The judge will look at many things when figuring this out. The decision about custody and visitation will depend on the facts and circumstances of your family’s case. The judge can consider where you live, how often you are deployed, and the lengths of your deployment when deciding the best interests of your child.
For more information about custody, see Family Legal Care’s guide on Custody & Visitation Basics.

I do not want custody, but I want to see my child. How can I do this?

If you want to visit with your child but the other party will not let you, then you may file a petition for visitation. The court will almost always allow a parent to visit with their child, unless there is evidence (proof) showing that your visits will put the child in danger. Examples of things the court might consider dangerous are drug or alcohol problems, a prior history of sexually abusing the child, or exposing the child to domestic violence.

The court can order different kinds of visits, including supervised visitation. Supervised visitation means someone else is there to watch while you visit with the child. The court can also order telephone or videochat visits.

Can I get a lawyer to help with my custody/visitation case?

Yes. You can hire your own lawyer to represent you in a custody case. If you cannot afford one and you are a parent of the child, you may ask for an assigned (or 18-B) attorney at no cost to you. The judge in your case makes this decision. You must submit your current financial information so the judge can determine if you qualify. If your case involves only visitation, generally you do not have the right to an assigned attorney, even if you qualify financially.

What can I do if the other parent does not follow the custody/visitation order?

You can file a violation petition in court. This lets the judge know that the court order is not being followed.

Some examples of violations are: missing visits, arriving late to visits, and bringing the child back late. Sometimes a judge will increase or decrease the visits as a result of the violation. In some cases, the judge will stop all visits.In other cases, the judge might even change custody.

Can I change custody/visitation with my child when I leave the military?

Things sometimes change after the court makes a custody or visitation order. If a change in circumstances happens, then you can ask to change the order. For example, a return from deployment is a change in circumstances. You can ask for a change by filing a modification petition at the court that entered your last custody or visitation order. The judge will hear the case and make a new order if appropriate.

I am going to be deployed. Can the court change my custody order?

Yes, the court can enter a temporary custody order if you are deployed or if you are going to be deployed. The judge must find it is in the child’s best interests to modify the custody order.

If you are going to be deployed, you can ask the court for a stay of proceedings. A stay of proceedings means the court will temporarily stop or delay a court case for at least 90 days. A temporary custody order can be made even when the court has granted a stay of proceedings. The court does not make final custody orders before or during your deployment.

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