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Military Divorce Considerations

San Diego coast

Considering the large military population in San Diego, it is not uncommon for one or both parties in a San Diego divorce case to have served in the military. The divorce attorneys at the firm frequently answer the questions:

Does BAH count as income for child support?

One of the unique aspects about being employed by the United States Military is the various forms of compensation offered to service members. In addition to receiving a “base salary” many service members also receive benefits known as “BAH” and “BAS”. BAH stands for Basic Allowance for Housing and BAS stands for Basic Allowance for Sustenance. These allowances constitute extra money, over and above the base salary, provided to service members in order to pay for basic living expenses. Divorce attorneys are frequently asked: Is BAH or BAS military allowances considered income available for support?

In California family law cases, many parties and their divorce attorneys have disputed whether BAH and BAS should be considered as income available for support. Military spouses have argued that military allowances are not income for federal income tax purposes and therefore they should not be considered income for the purpose of calculation child and/or spousal support. Non-military spouses have argued in response that military allowances are clearly income as they directly reduce a service member’s living expenses and should be considered as income available for support. Military spouses have also argued that federal preemption laws prohibit California courts from using BAH or BAS in support calculations.

In 2010, the California Court of Appeal cleared up any debate regarding whether BAH and BAS should be considered as income available for support. At the trial court level, the court stated “If it looks like income, it is income no matter how it is paid to you. And this court has always considered BAH and BAS to be income.” The Court of Appeal affirmed the trial court’s understanding of the law and held that BAH and BAS are income available for support.

How is military retirement divided in divorce?

Another common issue in family law, and especially in military divorce, is retirement. One of the most valuable assets to be divided is a retirement account/plan with a community property component. However, in many cases, the retirement plan does not have an ascertainable value which can be easily split down the middle and distributed to both spouses. This is the case with military retirement plans.

One problem which can arise with respect to military retirement plans in a divorce case is the state court’s jurisdiction to divide the asset. In order to address this problem, Congress passed the Uniformed Services Former Spouses’ Protection Act (USFSPA) which permits state courts, including California, to decide how or whether to divide military retirement in divorce, legal separation or annulment proceedings. However, before making orders regarding a military retirement plan, the state court must have jurisdiction to do so. The state court will have jurisdiction to make orders regarding a military retirement plan with the military spouse’s permission or if the military spouse is a legal resident of the state.

Courts have held that simply being stationed in a particular state does not automatically constitute residency in that state for military service members. Further, as divorce lawyers know, consent to jurisdiction does not have to be verbal. Consent is often implied by participation in the dissolution proceeding. This means that if a military spouse files for divorce or files a response to a divorce petition, the court will have jurisdiction over his or her military retirement. If you are a military spouse and would like to contest jurisdiction of a state where your spouse has filed for divorce, it is important to consult a divorce attorney regarding your rights.

USFSPA also has a provision regarding payment of military retirement benefits to a former spouse. The Defense Finance and Accounting Service (DFAS) will issue military retirement payments directly to a non-military former spouse only if the marriage and creditable military service overlap for a minimum of ten years. If the marriage and years of creditable service do not overlap for a minimum of ten years, the non-military former spouse must collect his/her portion of the retirement benefit directly from the military spouse. If the military spouse is reluctant to pay his/her former spouse his/her portion of the military retirement; the non-military spouse may need to seek the help of a divorce attorney and court intervention to collect the retirement benefit.

Income and Expense Declaration (Form FL-150)As it is currently written, the Income and Expense Declaration (form FL-150) contains a line specifically for military allowances. In all divorce cases, the parties are required to complete and exchange Income and Expense Declarations early on in the case. The court and/or the parties will use the Income and Expense Declarations to calculate child and spousal support. Item 5(l) of the Income and Expense Declaration asks the declarant to identify all “other income” including military BAQ, royalty payments, etc. Military BAQ is commonly interchanged with BAH. If a military service member does not disclose BAH or BAS income, he or she may be liable for breach of fiduciary duty. In California, courts will sanction a party for failure to disclose income regardless of whether any harm resulted from his or her failure to disclose.

Please contact Bickford Blado & Botros if you need more information about divorce in San Diego. Nancy J. Bickford is the only attorney in the county representing clients during divorce, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Contact us at (858) 793-8884 today for more information about the consultation process.