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?
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.