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.
Child Support Calculator:
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.
I am in active Navy in Washington state and I had been divorced for more then 4 years, I remarried and had another child.
I am trying to recalculate child’s support I am currently paying my xwife, and her lawyer had included my BAH into my monthly income to recalculated the child’s support.
Is this a correct way today???? Because if it is I will have to pay way more then I used to ….
I am in the active Army stationed in Maryland going through divorce. The courts used all sources of income in deciding how much support I owed (BAH and BAS) and sent a garnishment to the Defense Finance Accounting System (DFAS).
DFAS in turn, did not use the BAH and BAS in actually paying the support, but instead paid up to 55% of my “disposable income” not including BAH and BAS. Therefor, each month I am required to write a check for the difference between what DFAS paid out against the support order and what remains.
I understand that the courts feel BAH and BAS are income, but it’s odd and interesting that the military’s pay system does not, and will not pay out support orders calculating BAH and BAS.
Wait, so are you saying that DFAS is covering 55% of the support?