How Military Service Members Navigate Alimony and Spousal Support in South Carolina
Military divorces in South Carolina involve unique overlapping federal and state laws. Family Courts will include tax-free military allowances (BAH and BAS) when calculating income for alimony, and federal law caps the amount that can be forcibly garnished from a service member's pay.
South Carolina is home to a massive military population, with major installations like Fort Jackson in Columbia, Joint Base Charleston, and Parris Island in Beaufort. When a service member or their spouse files for divorce, standard state alimony laws suddenly collide with complex federal military regulations. Calculating a service member's true income, protecting military pensions, and navigating interstate deployments require specialized legal knowledge.
Because a misstep can result in severe financial hardship or the loss of federal benefits, military divorces should not be handled like typical civilian cases. We strongly recommend using our US Lawyer Directory to find a local South Carolina family law attorney who possesses specific experience in military divorce and DFAS regulations.
Calculating Military Income for Support
In South Carolina, alimony is governed by S.C. Code Ann. § 20-3-130, which requires judges to evaluate the true earning capacity of both spouses. For a civilian, this is as simple as looking at a W-2. For a soldier, sailor, airman, or marine, the Leave and Earnings Statement (LES) contains numerous different pay categories that must be properly interpreted by the Richland County Family Court, Columbia or the Beaufort County Family Court, Beaufort.
Treating BAH and BAS as Income
The military provides a Basic Allowance for Housing (BAH) and a Basic Allowance for Subsistence (BAS) to help service members pay for rent and food. These allowances are tax-free, which means a service member takes home more actual cash than a civilian with the exact same gross salary. South Carolina Family Court judges absolutely include BAH and BAS when calculating the service member's gross income for alimony and child support purposes. Because it is non-taxable, lawyers often have to 'gross up' this amount to show its true value compared to civilian taxable income.
The Impact of Combat Pay
Hazardous duty pay or combat pay presents a unique challenge. While this income is also tax-free and increases the service member's overall compensation, it is inherently temporary. If a soldier at Fort Jackson is deployed overseas and receives combat pay, a South Carolina judge may consider it when looking at the overall financial picture. However, courts generally recognize that this pay will end once the deployment is over, so they are cautious about basing permanent alimony awards on temporary hazard pay.
DFAS Garnishment Limits
If a service member fails to pay court-ordered alimony, the civilian spouse can seek to have their military pay garnished directly through the Defense Finance and Accounting Service, Cleveland. However, federal law provides strict protections for the service member to ensure they still have enough money to live.
Under federal regulations, DFAS can only garnish up to 50% of a service member's 'disposable earnings' for spousal support if they are supporting a new family, or up to 60% if they are not. An additional 5% can be garnished if they are more than 12 weeks behind on payments. It is important to note that the state court can order a higher alimony amount, but DFAS will not garnish more than the federal limit-leaving the service member personally responsible for paying the remaining balance out of pocket.
The 10/10 Rule for Dividing Military Pensions
Military pensions are often the most valuable asset in a military marriage. Under the Uniformed Services Former Spouses' Protection Act (10 U.S.C. § 1408), state courts have the authority to divide military retirement pay as marital property. This is heavily influenced by the federal precedent Howell v. Howell, 581 U.S. 214 (US Supreme Court 2017), which dictates how disability waivers affect pension division.
When dividing military retired pay as property, spouses often hear about the '10/10 Rule.' Under this federal rule, if the couple was married for at least 10 years and that marriage overlapped with at least 10 years of creditable military service, the former spouse can receive their share of the pension directly from DFAS using Form DD 2293, Federal, Defense Finance and Accounting Service, Application for Former Spouse Payments from Retired Pay. If the marriage does not meet the 10/10 requirement, the court can still divide the pension, but the service member must pay the former spouse directly. Crucially, under 10 U.S.C. § 1408(d)(2), the 10/10 rule applies exclusively to property division; DFAS directly enforces and pays court-ordered alimony and child support regardless of the duration of the marriage or military service overlap.
How Much Does it Cost in South Carolina?
Military divorces require specialized knowledge, which can influence legal costs.
| Family Lawyer Retainer | $3,500 to $7,500+ |
| Pension Valuation Expert | $500 to $1,500 (To draft a proper military pension division order) |
| Court Filing Fees | $150 to $200 |
How Long Does the Process Take?
In South Carolina, couples must live separate and apart for one continuous year before filing for a no-fault divorce. If filing on fault grounds (like adultery), the process can begin sooner. However, for military families, the 50 U.S.C. § 3932 allows an active-duty member to temporarily 'stay' (pause) divorce proceedings if their deployment prevents them from participating in the lawsuit. This can extend the standard 6-to-12-month divorce timeline significantly.
Frequently Asked Questions (FAQ)
Does VA Disability Pay count as income for alimony in SC?
Federal law prohibits state courts from dividing VA disability pay as a marital asset. However, South Carolina courts can still consider VA disability payments as a source of income when determining the veteran's ability to pay spousal support.
What happens if my ex refuses to pay alimony after leaving the military?
Once they separate from the military, DFAS garnishment stops for active pay. You will need to enforce the alimony order against their new civilian employer by filing a Rule to Show Cause in a South Carolina Family Court.
Does adultery affect military alimony in South Carolina?
Absolutely. Under South Carolina law, a spouse who commits adultery before a formal settlement is signed or before the court issues an order is completely barred from receiving alimony, regardless of their military or civilian status.
Can a commander force a soldier to pay alimony?
Before a formal court order is issued, military regulations require service members to provide adequate financial support to their dependents. A commander can enforce this military regulation, but once a South Carolina Family Court issues a specific alimony order, the court order supersedes the commander's authority.
No reviews yet. Be the first to share your experience!