Special Issues in Military Divorce: Calculating Income and Disciplinary Action

G. CALCULATING TOTAL ACTUAL INCOME (ALLOWANCES FOR SUPPORT CALCULATIONS)

1.     The Leave and Earnings Statement (LES)

    Obtaining a copy of a SM’s LES is the most important step towards calculating their income to use for child or spousal support guidelines.  These statements are readily available to SMs online.  When reviewing a LES there are four things to look for.  First, base pay has two components the pay grade and years of service.  That means someone in the Army with 6 years of service will receive the same pay as someone in the Navy with 6 years of service if they are on the same pay grade.  Second, look for the allowances that all SMs receive.  The two most common are the Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS).  It is important to remember that the BAH is adjusted when the SM is married and has children, the BAS is meant to only cover meals for the SM.  Third, allotments are payments that the SM has chosen to have automatically deducted from his/her paycheck.  Fourth, Special Pay can apply when the SM has a special skill or is performing a special role.  Common examples of special pay are: diving, aviation (flight/jump), foreign language proficiency, hardship duty, hazardous pay, imminent danger, medical, dental, nuclear power, submarine, etc.  Note that although allowances and special pay are non-taxable, Virginia’s definition of “gross income” includes all sources of income so they should be counted.

    i.    Other Considerations 

If the SM is living on base they will not receive a BAH, but they are receiving an in-kind benefit from the government.  To compensate for that benefit consider adding the BAH and BAS they would have received to their income.

    Non-taxable income can be converted to taxable income to account for the benefit of having income exempt from taxes.  For example, if the SM gets a $1,000 monthly form of special pay and is in the 25% federal income tax bracket and pays 10% in state income taxes the true value of that payment is $1,538.46 because 1000 / 1- (.25 + .10) = 1,538.46.  Because Virginia’s support guidelines use gross income amounts this number more accurately reflects the SM’s gross income.  

2.    Retired/Disabled Pay

Virginia considers military retirement and disability pay as income for the purposes of calculating support.

J. DISCIPLINE ACTION FOR THE ROGUE SPOUSE

    One of the most common scenarios we see at our firm for military divorce cases is that one spouse will go rogue.  On some occasions it can be the SM who is unresponsive and uncooperative.  As mentioned in the section on child support, one of the solutions for a rogue SM is to contact their commanding officer (CO).  The CO can enforce compliance with temporary support guidelines and get the SM in line.  While having access to the CO can be helpful when the SM has gone rogue, it can be equally devastating when abused by a spouse that has gone rogue.  Some spouses of SMs will contact the CO when things do not go their way in court.  They may think they are doing the right thing, but ultimately their actions could have a lasting effect on the SM’s military record and ability to earn promotions in the future.  We recommend that when representing a SM, you encourage him/her to be open with their CO about the situation.  Notifying a CO about a pending divorce, custody, visitation, or support case from the beginning can go a long way towards helping the SM down the road if their spouse goes rogue.