Question:

I am a member of the military paying child support to my wife during our separation based on my state's child support calculator that includes both my base pay and housing allowance (BAH).

My wife feels the gross monthly income amount entered into the calculator should be adjusted in consideration of the fact that my BAH is income that will not be taxed, as opposed to all of her employment income being taxed.

Is this fair? Will the court typically adjust income for this reason?

Answer:

I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Maryland divorce and child support laws where I am licensed to practice.

If there is no child support order currently in place from the courts, your current support obligation is based on the rules for your branch of the military. 

Each branch of the military has different rules for the support of family members. You should consult with a superior to determine the amount of child support you should be paying pending a court order. 

Note, however, that in my state a court has the discretion to backdate your child support obligation to the date of the filing of a complaint requesting child support. Backdating child support is not ordered if the court finds that doing so would yield an inequitable result.

Once you are in court, your child support obligation will be calculated using your state's child support guidelines. The guidelines will calculate your obligation based on your actual monthly income (before taxes), your wife's actual monthly income (before taxes) and the cost of any health insurance, work-related daycare and/or extraordinary medical expenses of the children.  

In my state, you and your wife are correct to include your BAH in estimating the child support award that will be ordered by the court as your BAH is considered income to you. 

Certain aspects of your BAH, such as a COLA, may not actually reduce your personal expenses and thus may not be considered "actual income" for purposes of child support.

Finally, while not directly on point but in case law that applies in my state, the court in Petrini v. Petrini , 336 Md. 453 (1994), attributed free housing to a father's actual income for purposes of calculating child support but did not adjust the value of that housing to account for the fact that it was a tax-free benefit.

Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with a divorce lawyer in your jurisdiction.

Cordell & Cordell has men's divorce lawyers located nationwide. To schedule an appointment with a divorce attorney, including Maryland Divorce Lawyer Sara L. Schwartzman, please contact Cordell & Cordell.