A common question I receive is how support is calculated in a military divorce. It’s a great question and you should be educated about it as much as possible before going forward with your divorce.
The Biggest Factors You Should Keep in Mind
The key to knowing how to calculate child support and spousal support where one or both of the parties is in the military, is to know and understand how to read an LES, which stands for a Leave and Earnings Statement. Additionally, it’s important to understand the different types of military pay. Basic pay is going to be the base salary of the military spouse, this is going to be the taxable income of the military spouse. If an attorney is not familiar with the LES or the structure of military pay, they may attempt to base child support and spousal support solely on that base pay. The LES will have nontaxable income, which are known as allowances.
Two Types of Allowances to Remember
There are two main types of allowances that must be included in the nontaxable pay column in the child support or spousal support calculator. The first is called BAH, which stands for Basic Allowance for Housing. The second is BAS, which stands for Basic Allowance for Subsistence. These two allowances may change depending on where the service member’s stationed. BAH can also include dependents or will not include dependents. In cases where there are minor children in the marriage, the service member will continue to have dependents after the divorce case is finalized. The military can also have special and incentive payments, such as imminent danger pay or hostile pay, which are paid on a monthly basis. There may also be special payments that are bonus payments, made annually or every few years. All of these payments may be included in child support and spousal support calculations for the service member.
An issue that may arise in a military divorce is that unlike a civilian divorce, the military will not produce documents in response to a subpoena, unless it’s signed by a judge. Therefore, if your spouse is a service member and they do not provide the LES in response to discovery, then you will have to obtain the order to produce the employment records, and have that signed by the court in order to obtain those records. In California, we have various programs that are designed to calculate child support and spousal support. The support numbers can vary based on which column the income is entered, therefore you want to ensure that your attorney is aware as to what income is taxable and what is not taxable. If the numbers are not put in correctly, then you may be overpaying your support if you’re the service member, or you may be receiving less support than you’re entitled to.
If you have any questions about child support or spousal support or how the LES is used to calculate support, send us over an email or give us a call.