How to Calculate Child and Spousal Support When Receiving Military Pay?
Child support and spousal support calculations can be complicated, especially when either spouse is in the military and receiving military pay. Military pay is quite different from the pay at a civilian job and can be confusing to the layperson. There are several different types of pay that make up a servicemember’s monthly check. These include Base Pay, Basic Allowance for Housing (BAH), and Basic Allowance for Subsistence (BAS).
Servicemembers may also receive other types of pay, such as incentive pay, hazardous duty pay, and sea pay. Some of these different pays are taxable, and some are non-taxable. However, in California, all these different types of pay, whether taxable or non-taxable, are available and used for the calculation of child and spousal support. Here are some of the most common categories of military pay:
Base Pay: Military members are paid a base monthly pay according to their 1) paygrade, and 2) years in service. The Basic Pay Table for active duty servicemembers can be found on the website of Defense Finance and Accounting Service (DFAS).
Basic Allowance for Housing (BAH): Military members who do not reside in military housing receive a housing allowance each month. The amount is based on 1) the servicemember’s paygrade, 2) location, and 3) whether or not the servicemember has dependent family members. BAH rates are set by surveying the cost of rental properties in each geographic location and are published on the Defense Travel Management Office website
Basic Allowance for Subsistence (BAS): BAS is an allowance to offset costs for a servicemember’s (but not family members’) meals. BAS rates are linked to the price of food and adjusted each year. The 2023 BAS rates are $311.88/month for Officers, and $452.56/month for Enlisted members.
Special and Incentive Pay (S&I): These are flexible additional pays that the military uses to address specific manning needs. They may be used to improve recruiting and retention by increasing compensation for onerous or hazardous duty assignments or conditions. They can also be used to provide incentives for service members to develop skills that are important to national security objectives. Some S&I pays that servicemembers may receive are Hardship Duty Pay, Assignment Incentive Pay, and Hazardous Duty Incentive Pay.
As noted above, all pays that a servicemember receives are considered income available for calculating child support and spousal support in California. This is because under California law, the child support calculation is based on each parent’s “annual gross income,” which means “income from whatever source derived.” Cal. Fam. Code §4058(a). The court may consider employee benefits, including housing benefits. The law does not exclude military allowances.
In In re Marriage of Stanton, (2010) 190 Cal.App.4th 547, a military member argued that his non-taxable military allowances, like BAH and BAS, should be excluded from the child support calculation. The court disagreed, ruling that all military pay is income available for support, including allowances, and that the federal government had no intent to preempt state family support law by making allowances nontaxable.
Calculating child and spousal support can be complicated, especially when dealing with military pay. In order to ensure that family support in your case is calculated fairly and correctly, Contact Us to speak to a California family law attorney with military expertise.
Written by Jeanne Murray
Attorney Jeffrey P. Mach, Jr. is a Certified Family Law Specialist in the state of California. Mr. Mach is not a specialist in any other state.
Information provided on our website does not constitute legal advice. This blog and video are strictly for informational purposes and not for the purpose of providing legal advice. Please be advised, the law is constantly changing. If you need legal advice, please contact your lawyer and they can answer your legal questions with respect to a particular issue or problem. Nothing posted or anything herein forms an attorney-client relationship. This a communication/solicitation/advertisement. Mach Law does not make any guarantees, warranties, or predictions regarding the result of representation.