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Military Pay and Child Support

The entries on a military paystub, or Leave and Earnings Statement (LES), can generally be divided into two categories: pay and allowance.  Amounts classified as pay, such as base pay, sea pay, and hazard pay are usually taxable.  Conversely, allowances such as the Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), and Cost of Living Allowance (COLA) are non-taxable.  One of the most common questions concerning military pay and child support is whether allowances can be considered income for the purposes of calculating child support.  The confusion stems from the fact that the federal government enacted a statute that prevents such allowances from being garnished but does not prohibit these allowances from being classified as income.

A 2010 California case called Marriage of Stanton established that allowances such as BAH and BAS are classified as income for the purpose of calculating child support.  Solomon and Carol Stanton divorced in 2008 and signed a stipulated Marital Settlement Agreement (MSA) that included support.  In 2009, Solomon filed an Order to Show Cause (OSC) to set aside the MSA, which the trial court granted.  The court held a hearing to determine spousal support and awarded Carol $1,415 per month in temporary child support and $1,600 in temporary spousal support.  Solomon was a member of the United States Navy.  In calculating temporary support, the court included his nontaxable military allowances in his gross income.

Solomon’s base salary and basic allowances had both increased by the time of the 2009 filing.  His argument was that the court erred by including his basic allowances for housing and subsistence in his gross income, and the court violated the federal preemption doctrine, since federal law exempts military allowances from the definition of income for federal tax purposes, and they are not subject to wage garnishment for support purposes.  The trial court denied Solomon’s requested relief.  The issue before the Stanton Court of Appeal was whether the federal preemption doctrine prohibits inclusion of military allowances for housing and food in a party’s gross income for purposes of calculating child and spousal support, since such allowances are not taxable or subject to wage garnishment under federal law.  Solomon had the burden to show the applicability of the federal preemption doctrine.

The Court of Appeal held that he failed to meet that burden.  He cited no direct enactment showing Congress intended to disallow a state court’s inclusion of military allowances in a party’s gross income for purposes of family support.  The nontaxable status of military allowances does not suggest Congress had any preemptive intent regarding child or spousal support.  The Court of Appeal stated that tax laws and state support statutes have different purposes; the purpose of the Internal Revenue Code was to calculate taxable income, while the purpose of California’s support statues was to ensure parents’ equal responsibility to support a child in the manner suitable to the child’s circumstances.  Marriage of Stanton set a precedent for the actual income (not taxable) income of military members to be considered when calculating child support.