Military divorces present unique challenges and far-reaching ramifications for our clients. This area of law is a complex mixture of several Federal and State statutes which are balanced against the servicemember spouse’s particular branch procedures and the standards and practices in your jurisdiction. At Graine Mediation, we know the jargon, understand the issues, and are skilled at making sure that both parties have all the information they need in order to make the best settlement choices they can mutually agree upon for themselves and their children.
In this special, three-part blog post, we’ll try to demystify this process for you.
Child Support is Calculated Using Virginia State Minimum Guidelines: At Graine Mediation, minimum guidelines child support is calculated using the Virginia State Guidelines. Our software used for calculations, “VADER”, is the calculator used by most attorneys and judges in Northern Virginia. The various branches of the military, too, have their own minimum family support calculations. However, the military child support guidelines tend to be lower than state guidelines and are really only intended to provide a temporary solution in an emergency situation.
Gross Income: Child support is based, in large part, on the parties’ gross monthly incomes. For a servicemember or retired servicemember, the Leave and Earnings Statement (LES) and the Retiree Account Statement (RAS), are essential to determine gross monthly income. In Virginia, the courts broadly interpret the term “gross monthly income”. That means that just about every form of income that a servicemember receives is includable in the gross income variable for the child support calculation. For military clients, the gross salary variable used in the Virginia Guideline’s Child Support Calculation includes, but it not necessarily limited to:
- Base Salary
- BAH (Basic Allowance for Housing): A housing allowance calculated using location, family commitments, and the servicemember’s pay grade
- BAS (Basic Allowance for Subsistence): All servicemembers receive this form of pay when on tour ($150-$300/month)
- FSA (Family Separation Allowance-II): An allowance for mobilized servicemembers who have been separated from their family members for more than 30 consecutive days (approximately $250.00/month)
- HDP-L (Hardship Duty Pay): The amount of HDP-L depends on the servicemember’s deployment location. ($50-$150/month)
- HF/IDP (Hostile Fire/Imminent Danger Pay): Often referred to as “combat pay”. When HF/IDP is used to a servicemember in certain designated combat zones, HF/IDP is tax free. (approximately $225/month), see CZTE, immediately below
- CZTE (Combat Zone Tax Exclusion): This is a monetary benefit for certain designated zones where a servicemember may be deployed. CZTE releases a servicemember from paying having to pay Federal and State tax on his or her Base Salary and HF/IDP.
- Travel Per Diem: Since servicemembers are usually provided housing when on tour, there is only a small per diem travel allowance (approximately $3.00-$3.50/day) for living expenses.
- In Kind Compensation: This is non-cash compensation in the form of housing, meals, and other nonmonetary compensation (not found on the LES).
Even non-taxable pay is factored into a Virginia child support calculation as part of the servicemember parent’s gross income. Because so many servicemembers receive various forms of compensation as tax-free pay, the LES, and not income tax returns, is a much better source of information to use when determining a servicemember’s gross income.
Deployment: When a servicemember deploys, goes on a mission, goes on tour, etc. (hereinafter referred to as “deployment”), he or she is compensated with one or more special pay benefits (as listed immediately above in the “Gross Income” section). When a servicemember is deployed, child support is often recalculated, since the main variable – gross income – will surely change. Some clients, however, choose to defer a complete recalculation of child support, particularly when the deployment is thought to be of short duration, and instead opt for a “per diem” calculation based on the servicemember’s special compensation.
Per Diem: Per diem child support calculations, which may be initiated upon a servicemember parent’s deployment (depending on how the Settlement Agreement is drafted) are sometimes used by our clients for the following two reasons:
(1) The parent who is stationary (not deployed) is effectively responsible for 100% of the childcare tasks and expenses. There is “no break” in the childcare costs and duties because the children are always with the stationary (not deployed) parent. This makes caring for the children much more expensive; and
(2) The increased custodial care responsibilities of the stationary parent may demand time away from income earning pursuits and, as a result, the stationary parent’s income may decrease.
As a temporary solution to account for these circumstances, some parties choose a per diem (per day) calculation based on an agreed upon percentage of the servicemembers various special compensation benefits. That percentage, in our cases, is never below what the Virginia minimum guidelines would have provided the stationary parent if a recalculation was done, but allows for a temporary solution to the deployment-related financial issues in a co-parenting situation. Also, depending on how your Settlement Agreement is written, this can be a “self-executing provision” (meaning that you do not need to go to Court to effect this temporary per diem child support obligation).
Per Diem as Relates to a Shared Child Support Calculation: When child support has been calculated using the Virginia Shared Child Support Calculations, a per diem is usually not the best reflection of the parties changed circumstances. Since Virginia Shared Child Support Calculations factor in the actual time the children spend with both parents into the financial calculation, a situation where a parent is deployed is not appropriate for a shared calculation. In most cases, the Child Support Calculation will need to be redone using the Virginia Sole Child Support Calculation. Depending on how your Settlement Agreement is written, this can be a “self-executing provision” (meaning that you do not need to go to Court to effect this temporary recalculation).
More Information: For more information on Virginia child support guidelines, generally, email Robin Graine (email@example.com) for an advance copy of her blog article “How is Child Support Calculated in Virginia?” (not yet published as of May 2013 on http://www.fairfaxdivorceblog.com)
Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator
This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.