DETERMINING THE GROSS INCOME OF A MILITARY SERVICE MEMBER FOR PURPOSES OF CHILD SUPPORT : Blawgs

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DETERMINING THE GROSS INCOME OF A MILITARY SERVICE MEMBER FOR PURPOSES OF CHILD SUPPORT

by Kedra Gotel on 12/03/12

Recently, we were asked by Kelly A. Miles, the Family Law Chair of the State Bar of Georgia to participate in a webinar to discuss the topic of gross income for military service members who are obligated to pay child support.  We were very thankful for the opportunity to sit down with John Camp, a military law expert and the drafter of Georgia’s military compensation statute and present the material to the members of the State Bar.  Below you will find the main bullet points when seeking or defending a child support action.

            Military Compensation and Allowances applies to the following persons/groups:

·         Parent

·         On active duty

·         In Armed Forces or Reserves

·         Armed Forces includes Army, Navy, Air Force, Marine, Coast Guard Public Health Service, Public Health Service and National Guard or Air National Guard

            Gross monthly income shall include:

·         Base Pay/Basic Pay

1.      Taxable and makes up largest portion of service member’s check

2.      Determined by rank and length of service

3.      Fixed by law in the Department of Defense pay table

·         Drill Pay

1.      Applies to Reservists and National Guard

2.      Fixed by law in the Department of Defense pay table

·         Basic Allowance for Subsistence or BAS

1.      Non taxable allowance

2.      A stipend meant to offset the service member’s meals

3.      It is NOT meant to compensate service member for cost of food to his/her family

4.      Service members who are currently in basic training or boot camp do NOT receive BAS because their meals are actually provided to them in government facilities

·         Basic Allowance for Housing

1.      Non taxable allowance

2.      Government housing quarters or cash substitute provided to service members

3.      Allowance generally increases with rank and amount varies with location and number of dependents.  Georgia does not follow this rule.

4.      In Georgia, BAH is determined at the pay grade which does not reflect number of dependents.  BAH also does not include area variable housing costs. For example, if the service member is located in New York but his/her dependents reside in Georgia.  You must go to the Department of Defense pay table and locate the service member’s pay grade (i.e. E-7) at the without dependents rate.  You will place this figure on your child support worksheet only.  Place the actual BAH which includes the dependents on the Domestic Relations Financial Affidavit. For an example of the financial affidavit, see Superior Court Rule 24.2.

·         Special Pay or Incentive Pay shall NOT be included in gross income for determining the child support obligation UNLESS the court or jury says it is included.  In Georgia, a jury can be empaneled to determine the amount of gross income of the parties.  This rule could be detrimental to the non-service member, custodial parent (i.e. the parent who is not in the military but has the child more than the 50% of the time).  There are a number of special pays service members receive including Flight Pay, Hazardous Duty Pay, Medical Special Pay, Nuclear Pay, Sea Pay, Jump Pay, Dive Pay, Submarine Pay, Family Separation Pay, etc.  The key to convincing the court to include such special or incentive pay as gross income is to argue consistency of pay, duration of pay, and that the pay is so germane to the service member’s job that failure to include it would be unjust.  Otherwise, either the judge or the jury may determine that the special pay will not be included in the calculation of child support.

            Now that we know what is included in gross income, where do we find the information?  The first document you should consult is the Leave and Earnings Statement or LES.  The LES is equivalent to the civilian employee’s paystub.  LES are received by the service member on the 1st and 15th of each month and are received electronically.  It is a detailed statement of the service member’s earnings, deductions, length of service, pay grade, etc.  The LES, however, may not reflect bonuses received since bonuses often come in a separate check from DFAS (Defense Finance and Accounting Services).  Georgia’s military compensation statute does NOT exempt bonuses from the child support obligation.  In fact, bonuses are specifically includable in gross income for determining child support.  Depending on the whether the bonus is recurring or non-recurring, there is always room to argue the bonus should be fully included, prorated, averaged over the year or a percent of the bonus should be included in the gross income.

            Finally, when you do not have an LES, consult the DoD pay table at www.dfas.mil/militarymembers/payentitlements/militarypaytables.html The pay table will provide guidance for the member’s pay including base pay, BAS, and BAH.  You must know the member’s rank and length of service.  Use the DoD pay table as well when the service member is receiving special pay and allowances but such figures do not reflect on the LES. 

            Thank you for taking time to read our latest blawg and we look forward to continuously serving the greater Atlanta community.  We would also like to thank the Family Law section of the State Bar of Georgia, Georgia Association of Black Women Attorneys and the family law section of the Gwinnett County Bar Association for extending us the opportunity to share the above information with its esteemed members.

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