Expert: Cynthia Bedell - 1/16/2009

Question
I'm asking this question for a friend, who is at her wits end. First off I will state that she is an E4 who is married to an E7 and they are going through a divorce and have NO legal separation agreement, or custody orders. They have 2 children from the marriage, one resides with her and one resides (supposedly) with her husband, who is at another duty station altogether - in PA.

She came here to Ft Bragg unaccompanied at first. She was told that even if she had children and was married, she would be treated as a single soldier, regardless of weather or not her children would join her later. A few weeks later, her circumstances changed, and now she has one child, and he has one.

Because he is the senior member, he is authorized the WDep rate. I understand that. But now that she has one of her children residing with her, shouldn't she be entitled to the single rate, at the very least?

She has already moved out of the barracks. She has an apt off post, and has her daughter going to daycare. But she is still not receiving BAH, because the finance office refuses to process her paperwork, insisting that she requires a non avail stamp from housing, and the housing here refuses to give her anything because they claim that the Ft Bragg regulations supercede the JFTR, Ch 10, and she is considered single, even if her circumstances have changed, because she is still married without any type of custodial order. She's been getting jerked around by both for a month and has many NCO's within the company trying to put their two sense into all of the proceedings.

Our command is well aware of the situation, and is now pressuring her (albeit subtly, but the pressure is still there) to utilize her FCP and reside in the barracks until the whole thing with their divorce is sorted out. She will not do it, and I can understand her concerns, because it is something her soon to be former spouse will try to use against her in the divorce proceedings. Her exception to policy memo made it all the way up to either Bn or Bde, I can't remember which, but the Col (either Lt Col or Col) flat out refused to sign it without a custodial agreement between the two parties - and she is back to square one.

I have advised her to go to the IG, but I wanted to know if she had any other services that she is able to utilize to help facilitate this process? Am I wrong in thinking that she should not have been in the barracks from the get go, and she should at least be receiving BAH at a single rate? Any help or opinions would be greatly appreciated.

Answer
Dear Crystal --

My recommendation is to visit the Judge Advocate General's office immediately, so that your friend can get a legal separation decree that outlines custody of the children and any other parameters of the pre-divorce agreements.

Until your friend has that agreement, her unit will treat her as a married Soldier unaccompanied by her family, per her PCS orders.  Because her husband is authorized BAH for the children, he should be paying her child support for any children living with her, but clearly he is not doing so.  A separation agreement would sort that out.  If her husband refuses to sign the separation agreement, she can use that against him in the divorce proceedings.  Further, she can sue him for support of the child she has with her, since he is responsible for the "dependents" since he is getting the BAH.  Failure to provide for his dependents is punishable, so I am sure he does not want his chain of command informed of his failure to provide.  She should send him a proposed separation agreement with the custody arrangements, and proposed "dependent support" costs of the off-post housing.  She should also note that these costs will be less once the divorce goes through and she is authorized BAH or military family for the child(ren) residing with her.

Unaccompanied Soldiers, no matter their actual marital status, are generally required to live in the barracks.  Since her status has changed, and her husband is subtly bullying her by not caring for both children and not providing child support, visiting the IG to discuss what her options are is also a good idea.

Good luck to you both.  Please write back, if you have additional questions or if additional issues arise.