Military Allowances are Includable in a Party's Gross Income for Purposes of Calculating Support

March 1, 2011

US waving flag.jpgSan Diego has a long and proud military history. San Diego, which started as a Spanish military outpost and continued to be a military town throughout the years, is currently home to numerous U.S. Navy, Marine Corps and Coast Guard facilities.

Whether you are in the military or married to a military service member the California Court of Appeals recently made a decision that will impact how support is calculated in divorces where one or both parties are in the military.

In the case of In re Marriage of Stanton, Mr. Stanton, a member of the US Navy, filed a request to modify support. At the time of the hearing, his base pay was $4,474.80/mo, Basic Allowance Housing ("BAH") was $2,199/mo, Basic Allowance Subsistence ("BAS") was $323.87/mo and special duty pay was $300/mo. The trial court included his military allowances as non-taxable income when calculating support stating, "If it looks like income, it is income no matter how it's paid to you. And this court has always considered BAH and BAS to be income."

Stanton appealed the trial court's inclusion of his military allowances as gross income on a theory that federal law preempts the inclusion of military allowances as gross income because they are not taxable or subject to wage garnishments.

The California Court of Appeal disagreed, joining other several other state courts which have held that that federal preemption doctrine is inapplicable to military allowances and that such allowances can be included in a party's gross income for purposes of support. The court concluded the preemption doctrine is inapplicable because under United States Supreme Court authority, family law support matters are within the province of state law unless Congress has positively required by direct enactment that state law be pre-empted, and that before a state law governing domestic relations will be overridden, it must do major damage to clear and substantial federal interests. The court held that the inclusion of such allowances does not do major damage to a clear and substantial federal interest and that, to the contrary, the Department of Defense by regulation and otherwise encourages members of the armed forces to fulfill their family commitments.

The result of the Stanton decision is that California Courts will continue to include military allowances such as BAH and BAS as tax free income when determining child and spousal support.