How does a person calculate gross income for child support in military child support or divorce cases?
In any standard non- military divorce case and/or child support case, the attorney drafts a child support worksheet in accordance with the Georgia child support guidelines. The statutory authority for this action is delineated in O.C.G.A. 19-6-15.
Specifically, O.C.G.A. 19-6-15(f) deals with gross income as it pertains to the parties. The gross income of the parents is the primary factor in calculating child support. While this can be complex to determine, most family law and divorce lawyers have experience working with the state approved worksheets.
Where a significant number of attorneys lack experience is the calculations involved with determining gross income for military personnel. The Georgia statute specifically addresses this issue in section (f)(1)(E) of O.C.G.A 19-6-15:
(E) Military compensation and allowances. Income for a parent who is an active duty member of the regular or reserve component of the United States armed forces, the United States Coast Guard, the merchant marine of the United States, the commissioned corps of the Public Health Service or the National Oceanic and Atmospheric Administration, the National Guard, or the Air National Guard shall include:
(i) Base pay;
(ii) Drill pay;
(iii) Basic allowance for subsistence, whether paid directly to the parent or received in-kind; and
(iv) Basic allowance for housing, whether paid directly to the parent or received in-kind, determined at the parent’s pay grade at the without dependent rate, but shall include only so much of the allowance that is not attributable to area variable housing costs.
Except as determined by the court or jury, special pay or incentive pay, allowances for clothing or family separation, and reimbursed expenses related to the parent’s assignment to a high cost of living location shall not be considered income for the purpose of determining gross income.
Pay specific attention to (E)(iv) which discusses the basic allowance for housing (BAH) provided to service members. BAH is a monthly allowance given to service members to assist with off base housing costs. The amount paid by the government to the service member is determined in two ways. Rank of the service member and location of service members duty station.
Here is the rub: since service members rotate duty stations (some much more frequently than others) how is an attorney supposed to use this allowance to calculate child support if the amount theoretically can change a day after the judge signs the order?
I have to say that I love how the drafters of this statute addressed this issue. Paragraph (E)(iv) expressly addresses this concern: “Basic allowance for housing…shall include only so much of the allowance that is not attributable to area variable housing costs”
No interpretation needed here. The statute guides the attorney to use only the portion of the housing allowance not attributable to variable hosing costs. For example, a soldier holding the rank of captain may draw $1,533.00 a month if assigned to the city of Atlanta. If he chooses to live in buckhead or midtown or a suburb is irrelevant. If he is assigned to Atlanta he will receive the rate for Atlanta. Logic would dictate that the Atlanta attorney representing the soldier would draft a worksheet that includes the $1,533.00 as income. Now imagine, what would happen if that soldier gets transferred to Fort Polk, Louisiana 90 days after the order is signed and his allowance is cut to $1413.00?
The statute accounts for this and allows the attorney to use a non-locality (BAH) rate which is sometimes referred to as (BAH-II). The BAH-II chart which can be found here: http://www.defensetravel.dod.mil/Docs/perdiem/browse/Allowances/Non-Locality_BAH/2014-Non-Locality-BAH-Rates.pdf . This chart provides the housing rate according to rank with no attribution to locality. The uniformity of this chart simplifies the calculation and helps the parties reach a fair result without requiring the parties to return to court to modify child support every time a service member moves.
So in our example above, the correct BAH amount would be $1020.60 (non locality rate according to BAH –II chart) for a service member with the rank of Captain. Another important point is to use the calculation without dependents. Unless the service member represented has primary custody of the children, the government will only pay the without dependent rate.
I cannot count the amount of times I have corrected inaccurate worksheets based on this issue. Luckily, the statute is clear and the concept makes rational sense so most (most, not all) opposing counsel will not argue this point once they read the statute and reviews the (BAH-II) chart.