Military Divorce - Special Considerations for Calculating Child Support

The general method for calculating child support is similar in every state. You begin with each parent's gross income and subtract legitimate deductions including state and federal taxes, Social Security and Medicare contributions to determine net income.

Each state has a table of support guidelines based on that state's cost of living and other relevant factors. Locating the combined net income amount in the support guidelines will show the total child support obligation owed by both parents.

The total support obligation is then split based on each parent's share of net income. If a parent earns 60% of total net income, that parent will be responsible for payment of 60% of the total support obligation.

In many states, courts can deviate from the basic support obligation and order payment of higher or lower amounts based on numerous factors. These include extremely low or high parental income, support obligations owed to other children, and special needs of a child.

When civilian parents are employed, calculating support is often a relatively straightforward procedure. However, when a spouse is serving in the military, determining the proper income amount to use for support purposes can present challenges.

Military paystubs look very different and contain information you don't see on civilian paystubs. It is critical to use the service member's Leave and Earnings Statement (LES), the military's version of a paystub. In addition to base pay, the statement will show the service member's rank, years of service, allowances received, the number of dependents being claimed and the amount of leave time available.

In addition to the base pay amount, the LES will show any incentive or special pay the service member has received. For example, this may include a higher pay level for hazardous duty, aviation career incentive pay and special pay awarded to medical and dental officers.

When determining the income amount to be used for support calculations, non-taxable benefits including housing and meal allowances must be considered. The basic allowance for subsistence (BAS) is a specific amount paid to service members for their personal food expenses. For 2021, the BAS is $266.18/mo. for officers and $386.50/mo. for enlisted personnel.

The basic allowance for housing (BAH) varies depending on pay grade, location and whether the service member has dependents. The BAH "with dependents" amount remains the same whether the dependent is a spouse, a child or a spouse and children. BAH amounts are based on housing rental costs in the area where the service member is stationed. Housing allowances are usually not provided if a service member lives on base or in other government-provided housing.

In an expensive housing market like Seattle, an officer with an O-1E pay grade would receive a monthly BAH of $2679 without dependents and $3258 with dependents. This is a substantial amount of income that should not be overlooked when calculating support. The website of the Defense Travel Management Office for the U.S. Department of Defense includes a useful BAH calculator.

The Internal Revenue Service classifies food and housing allowances as untaxable income. However, for calculating child support, most states require all income to be disclosed regardless of whether it is taxable. This also applies to non-monetary compensation such as on-base housing.

BAS and BAH are cash benefits, and the amounts should be included in financial affidavits required by courts and in calculations for child support. If a service member receives free housing by living on base, the value of that housing may not be included in gross income as defined by state law. However, the potential value of that housing might still be considered by a court to justify an upward deviation from the basic support obligation.

Special and incentive (S&I) pay are typically used to improve recruiting or to retain persons with critical skills and important occupational specialties. Currently, there are more than 60 S&I pays authorized by law.

Some examples include Hardship Pay of up to $150 a month for service members living outside the continental United States in areas where the qualityof life conditions are substantially below U.S standards. Imminent Danger Pay of up to $225 a month may be paid to service members deployed to foreign areas where they are subject to the threat of physical harm or imminent danger resulting from insurrection, civil war, terrorism, or wartime conditions.

Assignment Incentive Military Pay of up to $3,000 a month is paid to service members for unusual assignment circumstances. Service members with certain skills who served 12 months in Iraq and Afghanistan and volunteered to agree to extend their tours received assignment incentive military pay of $300-$900 per month depending on the length of the extension. If service is in a war zone, this pay is not taxable.

Payment of annual bonuses to service members can be substantial and must also be considered as part of gross income. For example officers of the Air Force Medical Service Corps may get an annual bonus of up to $75,000 simply by agreeing to remain on active duty for not less than one year.

Courts often require both spouses to provide relevant financial documents to each other and the court when child support is being considered. At a minimum, the non-military spouse should request the other spouse's most recent tax return, 12 months of earning statements and any documentation showing receipt of bonuses and payments not reflected by those statements for the past year.

Income should never be determined by relying exclusively on the service member's income tax return. A substantial amount of military income, such as BAS and BAH payments, may be untaxable and not reported to the IRS, but that income would be relevant for child support calculations.

Calculating a fair and proper amount of child support is among the most important tasks when going through a divorce. Particularly when children are involved, consultation with a family law attorney is well-advised. When a spouse is a service member, choosing an attorney with experience handling military divorces should help ensure that important financial details are fully disclosed and reviewed. If you have any questions concerning a military divorce and child support, call the Law Offices of Peter Van Aulen at 201-845-7400 for a free initial consultation.