Military Aspects of Debt and Support Collection and Garnishment In Colorado Springs, CO

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There are some unique aspects of support and debt collection in the military. In the military, owing a debt is subject to disciplinary action at a military commander’s discretion. While owing a debt is not inherently a crime under military law, a servicemember’s failure to pay a legitimate financial obligation may result in disciplinary action if the failure is determined to be dishonorable or wrongful. United States v. Brunson, 30 M.J. 766 (1990). There is no equivalent process in the civilian sector. However, the Department of Defense (DoD) does not have legal authority to require servicemembers to pay private debts or to divert their pay for debt satisfaction, except in cases involving spousal maintenance, child support, or involuntary allotments under certain statutes. Therefore, while the military can not compel the payment of a debt, a military commander may impose disciplinary action on a member who wrongfully does not pay.

There are military remedies available for collectors that are not available in the civilian sector. For example, it is possible to contact military commanders and the Office of the Inspector General if a servicemember owes a debt which is not an option in the civilian sector. These are non-court-involved approaches that are available for debt collection from military members. Additionally, as with civilian pay, military pay can be garnished. Garnishment is done through the Defense Finance Accounting Service and involves a court ordered financial judgment and the use of specific federal form to submit the request.

Debt and support payments can be collected through military pay. There are standard procedures that must be followed in order to garnish military pay. Debt collection garnishment is governed by the Federal Debt Collection Procedures Act (FDCPA). United States v. Badger, 818 F.3d 563 (2016). Garnishment is an option for enforcement of child support and spousal maintenance obligations. 42 USCS § 659. Both active duty and retired pay can be garnished.

Generally for debt collection, The FDCPA requires service of a Writ of Garnishment. For support collection, the obligee must obtain a court order  from a court with jurisdiction over the obligor compelling payment to satisfy the support obligation. 42 USCS § 659. The obligor must receive notice of the action and have the ability to respond in accordance with fundamental due process rights. For military members, garnishment is limited to 50-65% of disposable pay, depending on whether the member is supporting other dependents or has arrears. 15 USCS § 1673, 42 USCS § 659.

With regards to spousal or child support payments, pay can be garnished  to satisfy these claims with some limitations. 10 U.S.C. § 1408(d)(1), 10 U.S.C. § 1408(d)(1). A garnishment or income assignment order is required to be provided to DFAS. Colorado law recognizes income assignments as a mechanism for collecting support obligations, which may not require a separate writ of garnishment if the income assignment is properly served and activated. C.R.S. 14-14-111.5. DD Form 2293 is the federal form used to apply for garnishment of child support and/or spousal maintenance from military retired pay which is provided to the Defense Finance Accounting Service (DFAS). A certified copy of the support order must be provided with DD Form 2293 for DFAS to garnish retired pay for pay for child support or spousal maintenance.

There are different procedures for arrearages. For Child support arrearages, a former spouse must submit a recent court order that identifies the total arrearages. See DoD FMR Vol. 7B, Chapter 29,¶ 290302, 29-5. As for spousal maintenance, a former spouse can collect current spousal maintenance under the Uniformed Services Former Souse’s Protection Act (USFSPA). 10 U.S.C. § 1408(d)(1). However, spousal maintenance arrearages are not subject to garnishment. DoD FMR Vol. 7B, Chapter 29, ¶ 290303.

Additionally, state law collection options often differ from what is permitted under federal law. Colorado law offers other collection remedies as well. For example, liens can be placed on real property to enforce support judgments, including arrearages for child support or maintenance. C.R.S. 14-10-122. Also under Colorado law, if the obligor has the present ability to comply with a court order but does not, remedial contempt proceedings may be initiated to compel compliance. C.R.C.P. 107(a)(5), C.R.C.P. 107(d)(2).

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