Military members paying child support

Attorney Jason HopperQuestion:

I am in the military and am paying child support to my ex-wife. She has remarried another military man. Can I pay less money for child support because my ex-wife and the children’s stepfather claim the children in the Defense Enrollment Eligibility Reporting System (DEERS), cover the children under Tricare, and receive Basic Allowance for Housing (BAH) with a dependent rate because of the children?

I know it’s not the obligation of the stepfather to provide for them but if the government is paying him BAH for my children isn’t he technically taking responsibility for them?

Answer:

I will preface my answer with the fact that I do not practice in the State of Maryland or the State of Texas.  Therefore, I cannot inform you as to the specific laws of either state and am answering your question using an analysis based in Indiana law.  It sounds like your matter is presently venued in the State of Texas.  Cordell & Cordell P.C. has offices in the State of Texas and attorneys whom would be happy to assist you.

You have asked if you can pay less money for child support because your ex-wife and the children’s step-father claim the children in the Defense Enrollment Eligibility Reporting System “DEERS,” cover the children under Tricare, and receive Basic Allowance for Housing “BAH” with a dependent rate because of the children.

[For our non-military friends, “DEERS” is a military database that lists all persons who are eligible for Tricare benefits.  “Tricare” is a health care program of the US Department of Defense which provides civilian health benefits for military personnel, military retirees, and their dependents.  “BAH” is an amount of money authorized to assist service members in defraying the housing cost incurred by them when assigned to a permanent duty station within the continental U.S.  The rate of “BAH” is based on median housing costs and is paid independent of a member’s actual housing costs].

To answer your question, if your case were venued in Indiana, you could not simply start paying a lesser amount of child support other than what has been ordered.  Rather, you would have to petition the Court for a modification of your current child support Order.  Indiana Code § 31-16-8-1 governs the Modification or Revocation of child support orders.  Under this section, modification of a child support order may be made only upon (1). A showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2). A showing that a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

You could likely argue that there has been a substantial and continuing change in circumstances which makes your current child support order unreasonable.  The fact that your former spouse and her new husband are receiving additional income from the children in the form of BAH with a dependent rate, coupled with any other factors such as increased income for your ex spouse, or a reduction in your income, would be the substantial and continuing change in circumstance.

In Indiana, it would be likely that “BAH” would be counted as your ex-wife’s income.  Indiana Courts look to the Indiana Child Support Rules and Guidelines (most recently amended January 1, 2010) for guidance into determining the proper amount of child support an obligor parent is to pay.  Guideline Number 3, entitled “Determination of Child Support Amount” defines what “income” is countable to both the obligor and obligee parents in determining child support.  This Guideline makes a laundry list of items that are countable as “weekly gross income” in Indiana for purposes of child support calculation that is even more inclusive than taxable income under the Internal Revenue Code.  So, even though your ex-wife may not have to pay taxes on things like your military BAH or COLA, an Indiana Court can count these items into your ex-wife’s income for child support purposes.  In fact, the Commentary to Guideline 3 states:

In calculating Weekly Gross Income, it is helpful to begin with total income from all sources.  This figure may not be the same as gross income for tax purposes.  Internal Revenue Code of 1986, § 61.  Means‑tested public assistance programs (those based on income) are excluded from the computation of Weekly Gross Income, but other government payments, such as Social Security benefits and veterans pensions, should be included.”

Based on this change, you would certainly be well served to seek out competent legal representation, particularly from an attorney who practices exclusively in domestic litigation, to assist you with a child support modification.

 

Jason P. Hopper is an Associate Attorney in the Indianapolis, Indiana office of Cordell & Cordell, P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Hopper is licensed in the state of Indiana – All State and Appellate courts, US District Court Northern District Indiana, US District Court Southern District Indiana, US Bankruptcy Court Southern District Indiana.

End of Content Icon

10 comments on “Military members paying child support

    My nephew is paying child support ($700) to his ex wife for the two kids. His ex wife does not take care of the kids. My nephew takes care and has his kids almost everyday. He is in the military (nephew), wife left him for another man. His ex wife is now expecting another child with her new partner. How can my nephew fight for full custody of his kids? His ex wife is money hungry and just wants the child support.

    On top of moving we will be living somewhefe where tbe cost of living is 3 times as expensive. Is there hope in him modifying the support?

    My husband has two boys and pays child support to his ex that doesnt work. She recently just got it modified to have 100% of his income including bah included to the support. Can this be right? It aeems so unfair considering shes living for free with a boyfriend. He also has ordered to move away so now we will be dealing with lo g distance and hes sulposed to lay for q0o% of traveling bc theres no income on her part?? We cant even afford that. How is this right or even fair?

    wrong
    you guys are ridiculous man up or give away your rights, this lawyer is wrong it is your responsiblity not the others to take care of your children duh. I can’t believe a grown person asked these questions. I can marry a millionar you’ll still have to pay your child support because you have the rights to the child not him, he takes care of what your not there for, for whatever reason. I agree with holly completely everyone here need to get there facts checked Bah and Bas is not income, that is used in the way your seeking it to be used. YOu all need to grow a pair.

    Why is he not taking care of his children? He pays his child support. He is just asking to pay less. Why should he have to give up, up to 60% of his pay because she cant get a job and be a woman. This is what i don’t understand. She needs to get her stuff together, stop relying on child support to carry her or supplement her life. A REAL woman doesn’t need child support or to dog her ex because it didn’t work out. A REAL woman handles her business. If you mad about child support then don’t be mad at people on welfare.

    This is so untrue! You don’t “claim” kids in DEERS. There is absolutely no increase whatsoever in BAH or other rates because of the children. It only increases once you marry and that’s it, you’re either “with dependents (your wife) or without”. They are making no extra income whatsoever because of the kids and if anything the courts will look negatively on the fact they’re providing health insurance and probably paying any out of pocket expenses as well and see it as a reason you should pay MORE child support because you’re not responsible for as much as you would be otherwise.

    You are completely incorrect. The military has several pay outs for children being claimed as dependents such as daycare assistance, increased BAH, FSA, and service only programs to help families cope with issues. So yes the wife is gaining money by marrying another military man because without this marriage her circumstances would not change from the original court order. This man is within his right to claim a decrease due to her increase in monthly gains from a marriage.

    That being said. The ex-wife, now remarried to a military man would be imputed at income. Her new husband would only receive BAH for single rate. Now that he is married to her, he receives dependent rate, which would make a difference in pay solely due to being married to her. Therefore she would be imputed a the difference in pay between single rate and dependent rate.

    MODIFICATION
    Hi, I have a question. My daughters mother is looking to modify the amount I pay. Do they include the BAH and BAS as my income?

    Cordell & Cordell attorney Jason Hopper’s response:

    I can only base my response on Indiana law as that is where I am licensed to practice. Contact an attorney in your state for specific legal advice. Cordell & Cordell has attorneys nationwide.

    Indiana Code § 31-16-8-1 governs the Modification or Revocation of child support orders. Under this section, modification of a child support order may be made only upon (1). A showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2). A showing that a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

    Indiana Courts also look to the Indiana Child Support Rules and Guidelines (most recently amended Jan. 1, 2010) for guidance into determining the proper amount of child support an obligor parent is to pay. Guideline Number 3, entitled “Determination of Child Support Amount” defines what “income” is countable to an obligor parent in determining child support. This Guideline makes a laundry list of items that are countable as “weekly gross income” in Indiana for purposes of child support calculation that is even more inclusive than taxable income under the Internal Revenue Code. So, even though you may not have to pay taxes on things like your military BAH or BAS, an Indiana Court can count these items into your income for child support purposes.

    Despite this recommended inclusion, Courts do have the ability to either phase in modifications in order to reduce the sting from a sudden doubling of child support such as what you experienced in your case, or even deviate from recommended child support obligation completely, based on the facts of your case. The Commentary to Guideline 1 of the Indiana Child Support Rules and Guidelines illustrates some examples where courts should phase in modifications or deviate completely, including scenarios which may be applicable to you, such as “both parents are members of the armed forces and the military provides housing” or “one of the parties is required to travel an unusually long distance in the course of employment on a regular or daily basis and incurs an unusually large expense for such travel” or “the custodial or noncustodial parent incurs significant travel expense in exercising parenting time.” The guideline further recommends “judges must also avoid the pitfall of blind adherence to the computation for support without giving careful consideration to the variables that require changing the result in order to do justice.”

    Jason P. Hopper is an Associate Attorney in the Indianapolis, Indiana office of Cordell & Cordell, P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Hopper is licensed in the state of Indiana – All State and Appellate courts, US District Court Northern District Indiana, US District Court Southern District Indiana, US Bankruptcy Court Southern District Indiana.

Leave a Reply

Your email address will not be published.