Ask a Divorce Lawyer: I’m currently getting hazard pay. Can my ex get an increase in support even though she’s denied my visitation rights?

Question: I currently work under contract with the Department of Defense as a Fire Chief. My ex-girlfriend, who I have twins with, has not been heard from in 12 years and hasn’t allowed me contact with the children since they were 1 years old. 

Out of absolutely nowhere, she gets in touch with me and asks for a re-evaluation of support since she heard I’m deployed in Iraq and getting hazard pay. I have no way of defending myself in court or asking for judgments against her for denying visitation. 

What am I supposed to do? I know there is a Soldiers and Sailors Act of 2003, but does it apply since I cannot just up and leave to take care of it? 

Additionally, why is it that the mother can deny visitation for 12 years and then come out of the woodwork to cash in when she feels like it?

Answer:

First, thank you for your service to your country. 

I see two questions here.  One is whether the Servicemember’s Civil Relief Act (SCRA) provides you with protection against her filing a modification of support.  The second question is whether she can get an increase in support even though she has denied visitation for twelve years. 

The SCRA was enacted in 2003 to enable servicemembers to devote their entire energy to the defense needs of the Nation and provides for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of the servicemember during their military service.  The statutes define who qualifies for the Act’s protection and when he or she can obtain a stay of the proceedings for at least 90 days.  A military legal assistance attorney may be available to you to address specific questions you may have regarding the SCRA. 

Depending on the laws of the state that ordered the support, she may be entitled to an increase in support based on your hazard pay.  Child support is determined by a formula which is based on your earnings.  Each state has distinct support statutes.  When there is a substantial change in circumstances, the parent receiving support can motion the court for a modification of support based on current earnings.  In most states, there is no defense to an increase of support.  The only question is whether or not you are earning more than you were at the time of the original order.  Although you may be able to obtain a stay of the proceedings, it is important to realize that in most states, support can be modified retroactive to the date of filing.  This means if she files for a modification today and you obtain a stay for X number of days, if the Court later increases the amount of support, you would be responsible for the additional amount of support you should have been paying from today until the date the support was order.  Some states even tack on interest.  As such, there are instances when a servicemember may be able to apply for a stay under the SCRA but chooses not to.  You should contact a domestic litigation attorney licensed in the state that originally ordered the support prior to deploying.  He or she can discuss the standards for a modification of support and your options for opposing the modification.

Finally, you should also discuss the fact that she is denying you placement with your attorney.  In most states, denial of placement does not alleviate any obligations for support.  This is because child support is considered the right of the child, not the parent who receives it.  The Courts do not want the children to suffer based on the bad acts of the mother. On the point of denying placement, when the court set support, did they also set a placement schedule?  If so, you and your attorney should discuss your options to enforce this order.  If the Court did not set a placement schedule, you and your attorney should discuss your options for obtaining visitation or placement.  

 

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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