[Code of Federal Regulations]
[Title 32, Volume 5]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR733.3]

[Page 365-368]
 
                       TITLE 32--NATIONAL DEFENSE
 
                   CHAPTER VI--DEPARTMENT OF THE NAVY
 
PART 733_ASSISTANCE TO AND SUPPORT OF DEPENDENTS; PATERNITY COMPLAINTS
--Table of Contents
 
Sec. 733.3  Information and policy on support of dependents.

    (a) Policy--(1) General. The naval service will not be a haven or 
refuge for personnel who disregard or evade their obligations to their 
families. All members of the naval service are expected to conduct their 
personal affairs satisfactorily. This includes the requirement that they 
provide adequate and continuous support for their lawful dependents and 
comply with the terms of separation agreements and court orders. Failure 
to do so which tends to bring discredit on the naval service is a proper 
subject of command consideration for initiation of court-martial 
proceedings or other administrative or disciplinary action.
    (2) Adequacy of support. Every member has an inherent natural and 
moral obligation to support his or her spouse and family. What is 
adequate and reasonably sufficient support is a highly complex and 
individual matter dependent on numerous factors, and may be resolved 
permanently only in the civil courts. Salient factors that should be 
considered are the pay of the member, any other private income or 
resources of the member and the dependents, the cost of necessities and 
every day living expenses and financial obligations of the dependents, 
and the expenses and other financial obligations of the member in 
relation to his or her income. The Department of the Navy does not and 
cannot act as a court in these matters. It is desired that the amount of 
support to be provided for dependents either be established by mutual 
understanding between the parties concerned or adjudicated in the civil 
courts. The support scales set forth in paragraphs (b) and (c) of this 
section are not intended as a fixed rule. They are intended as 
guidelines and the actual support may be increased or decreased as the 
facts and circumstances warrant

[[Page 366]]

until the amount of support to be furnished is settled by agreement of 
the parties or adjudicated by the civil courts. Because of the inherent 
arbitrary and temporary nature of the support scales set forth below, it 
is not intended that they be used as bases for any judicial proceedings, 
for to do so would lend excessive credence to administrative tools which 
have been designed for use only within the Navy and the Marine Corps.
    (b) Navy members. (1) The amount of support to be provided in the 
absence of a mutual agreement or court order is as follows:

For spouse only--\1/3\ gross pay
For spouse and one minor child--\1/2\ gross pay
For spouse and two or more children--\3/5\ gross pay
For one minor child--\1/6\ gross pay
For two minor children--\1/4\ gross pay
For three or more children--\1/3\ gross pay

    (2) For purposes of this support guide, gross pay will include basic 
pay and BAH, but does not include hazardous duty pay, sea or foreign 
duty pay, incentive pay, or basic allowance for subsistence.
    (3) Support of a lawful wife. The laws of jurisdictions in the 
United States impose a legal obligation upon a husband to support his 
wife. Exemptions from support of a lawful wife may be in the form of an 
order of a civil court of competent jurisdiction, relinquishment by the 
wife or mutual agreement of the parties, or a waiver of the naval 
support requirement granted by the Director, Navy Family Allowance 
Activity or the Commandant of the Marine Corps, as appropriate.
    (4) Payments of alimony. Dependents for whom basic allowance for 
quarters or other allowances are payable are defined by law. For 
purposes of qualifying for basic allowance for quarters, medical care or 
other benefits, a former spouse is not a dependent even though alimony 
has been decreed. Members are expected to comply with the terms of court 
orders or divorce decrees which adjudge payments of alimony even though 
basic allowance for quarters is not payable.
    (5) Support of children. The duty of a member to support his or her 
minor children is not affected by desertion or other misconduct on the 
part of the spouse. The obligation to support a child or children is not 
affected by dissolution of the marriage through divorce, unless the 
judicial decree or order specifically negates the obligations of the 
member to support a child or children of the marriage. The fact that a 
divorce decree is silent relative to support of minor children or does 
not mention a child or children will not be considered as relieving the 
service member of the inherent obligation to provide support for the 
child or children of the marriage. In many cases, the courts may not be 
cognizant of the existence of a child or children, or may not have 
jurisdiction over the child or children. A commanding officer has 
discretion to withhold action for alleged failure to support a child 
under the following conditions:
    (i) Where the member cannot ascertain the whereabouts and welfare of 
the child concerned.
    (ii) Where it is apparent that the person requesting support for a 
child does not have physical custody of the child.
    (iii) Where the member has been granted custody of the child by 
court order but does not have physical control of the child and the 
member is ready, willing, and able to care for and support the child if 
physical control is obtained.
    (6) Adopted children. The natural parents of an adopted child are 
relieved of the obligation to support the child as such duty is imposed 
on the adoptive parents. A Navy or Marine Corps member who contemplates 
the adoption of a child should be aware of the legal obligation to 
provide continuous support for such child during minority.
    (7) Entitlement to basic allowance for quarters. Entitlement of 
members to basic allowance for quarters on behalf of dependents is 
provided by statute. No member should be denied the right to submit a 
claim or application for basic allowance for quarters, nor should any 
command refuse or fail to forward any such claim or application. In 
cases involving parents, the member should furnish an estimate of the 
dependency situation to the best of his or her knowledge. Commanding 
officers should not contact parents for dependency information to 
include in the member's application. This delays the

[[Page 367]]

application and serves no useful purpose, as such cases are thoroughly 
investigated by the Navy Family Allowance Activity or Headquarters 
Marine Corps, which obtains necessary dependency affidavits directly 
from the parents. Any person, including a service member or dependent 
who obtains an allowance by fraudulent means is subject to criminal 
prosecution.
    (8) Application of the rule based on Robey v. United States 71 Ct. 
Cl. 561. Determinations that no dependency exists may be made in 
disputed cases--if a member does not contribute to the support of spouse 
and child at least to the extent of:
    (i) The full amount of his/her basic allowance for quarters, or
    (ii) An amount specified in a court order or legal separation 
agreement, or
    (iii) An amount agreed to by the parties as acceptable, adequate 
support, whichever is lesser. Pertinent decisions of the Court of Claims 
or Comptroller General will be followed in determinations of dependency.
    (c) Marine Corps members. (See MCO 5800.16A, Marine Corps Manual for 
Legal Administration (LEGADMINMAN))
    (1) In the absence of a court order or a written agreement between 
the parties as to an amount of support to be furnished by the Marine, 
the following shall apply to establish interim support requirements. 
Note that gross pay is defined as basic pay and BAH, but does not 
include hazardous duty pay, incentive pay, or basic allowance for 
subsistence.
    (2) Single family. (i) For a single family living in Government 
housing (civilian spouse): interim support shall be $200.00 per 
supported person, up to a maximum of \1/3\ gross pay, per month.
    (ii) For a single family not living in Government housing (civilian 
spouse): interim support shall be either $200.00 per supported family 
member, or BAH at the ``with dependents'' rate, whichever is greater, up 
to a maximum of \1/3\ gross pay, per month.
    (3) Multiple families (not including a spouse in the armed forces). 
Interim support for each family member shall be either $200.00 per 
supported family member, or the pro rata share of BAH at the ``with 
dependents'' rate, whichever is greater, up to a maximum of \1/3\ gross 
pay, per month.
    (4) Both spouses in the armed forces. (i) No children of the 
marriage: no support obligation, regardless of any disparities in pay 
grade.
    (ii) All the children of the marriage in the custody of one spouse: 
interim support shall be either $200.00 per supported child, or BAH at 
the ``with dependents'' rate, whichever is greater, up to a maximum of 
\1/3\ gross pay, per month.
    (iii) If custody of children of the marriage is divided between the 
two parents: interim support shall be either $200.00 per supported 
family member, or the pro rata share of BAH at the ``with dependents'' 
rate, whichever is greater, up to a maximum of \1/3\ gross pay, per 
month.
    (5) Support amounts required pursuant to this section will be paid 
until a court order or written agreement is obtained.
    (6) Form and timing of financial support payments
    (i) Unless otherwise required by court order or by written financial 
support agreement, a financial support payment will be made in one of 
the following ways:
    (A) Check.
    (B) Money order.
    (C) Electronic transfer.
    (D) Voluntary allotment.
    (E) Cash.
    (F) Involuntary allotment.
    (G) Garnishment.
    (ii) As an exception to paragraph 15002.6a of the LEGADMINMAN, a 
commanding officer may direct compliance with the financial support 
requirements of this section by making in-kind financial support. For 
example, paying non-Government housing expenses on behalf of family 
members, automobile loans, or charge accounts.
    (7) Alimony and child support. (i) Dependents for whom BAH or other 
allowances are payable are defined by law. For purposes of qualifying 
for BAH, medical care, or other benefits, a former spouse is not a 
dependent even though alimony has been decreed. Marines are expected to 
comply with the terms of court orders which adjudge alimony payments 
(even though BAH is not payable) until the responsibility

[[Page 368]]

for compliance is terminated by a court of competent jurisdiction; a 
written agreement between the persons concerned; relinquishment by the 
former spouse in writing; or the waiver of the support requirement is 
granted by the general court-martial (GCM) authority in writing.
    (ii) If the decree is silent as to alimony payments, it is presumed 
that the court did not intend such payments.
    (iii) When a valid court order exists and the Marine concerned is 
financially unable to comply, the Marine will be advised that 
noncompliance with the terms of that order renders the Marine liable to 
further civil court action.
    (iv) The duty of Marines to support their minor children is not 
terminated by desertion or other misconduct on the part of the Marine's 
spouse. Similarly, the obligation to support a child or children is not 
eliminated or reduced by the dissolution of the marriage through 
divorce, unless a judicial decree or order specifically negates the 
obligation of child support. The fact that a divorce decree is silent 
relative to support of minor children, or does not mention a child or 
children, will not be interpreted by command authorities as relieving 
the Marine of the inherent obligation to provide support for the child 
or children of the marriage.
    (v) A commanding officer may consider releasing a Marine under his/
her command from the specific requirements of this regulation in the 
situations described below. A commanding officer may reconsider any 
prior decision made by himself/herself or by a prior commanding officer:
    (A) When the Marine cannot determine the whereabouts and welfare of 
the child concerned;
    (B) When it is apparent that the person requesting support for the 
child does not have physical custody of the child;
    (C) When the Marine has been the victim of a substantiated instance 
of physical abuse (this section applies only to a requirement to support 
a spouse, not dependent children. Commanding officers are strongly 
encouraged to consult the installation family counseling center 
concerning such issues. In addition, commanders should exercise extreme 
caution in denying dependent support in cases where the servicemember is 
also a perpetrator of spousal abuse.); or
    (D) The dependent is in jail.
    (vi) All command directed support waivers shall be in writing and a 
copy shall be provided to the disenfranchised family member by the 
command. The command shall also retain a copy. Alleged verbal support 
waivers shall be given no force or effect.
    (vii) The natural parents of an adopted child are relieved of the 
obligation to support the child as such duty is imposed on the adoptive 
parent. A Marine who contemplates the adoption of a child should be 
aware of the legal obligation to provide continuous support, once 
adopted, for such child during its minority.

[44 FR 42190, July 19, 1979, as amended at 65 FR 62617, Oct. 19, 2000]