Virginia child or spousal support cases involving military servicemembers present unique and sometimes challenging issues. Servicemembers have a pay structure much different than that of a civilian. Military pay can be any combination of basic pay, benefits, entitlements, allowances, and/or special and incentive pay. With the various types of pay, some taxable, many non-taxable, how does a servicemember know what pay the court will look at to determine spousal or child support? Can the court consider non-taxable pay such as disability pay for spousal support or child support? Are special entitlements such as Post 9-11 GI Bill benefits considered income for purposes of determining support?
Military Pay and Child Support in Virginia
Virginia courts use the same factors in every child support case to determine the amount applicable under the statewide child support guidelines. The court may deviate from “the guidelines amount” on a case-by-case basis depending upon the evidence presented. Virginia Code Sections 20-108.1 and 20-108.2, which govern the calculation of child support, lay out the factors that the court must look to in calculating support per the guidelines. Those factors are:
- The combined gross income of the parties;
- The amount that either parent or his or her spouse pays for health insurance or dental coverage for the child(ren);
- Any work-related child care expenses paid for the child(ren); and
- Whether either parent has a child who is not a party to the proceeding (e.g. a child from a previous relationship). A parent may be entitled to a credit for having an additional minor child, if the child lives with the parent or the parent pays support for the benefit of that child.
But, what does Virginia count as income for purposes of the child support guidelines? Per Virginia Code §20-108.2, for purposes of child support:
“[G]ross income” means all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.
So, almost all sources of income are considered for purposes of determining child support in Virginia. Obviously all basic military pay, whether active duty or drill reserve pay, counts as income. But because §20-108.2 makes no exception for military benefits or non-taxable income, all other pay, allowances and benefits will also be included in the servicemember’s income for child support purposes. This means that all of the following will count as income under the Virginia child support guidelines:
- Allowances, including Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), dislocation pay, clothing allowance, Family Separation Allowance (FSA) and Cost of Living Allowance (COLA);
- Special and incentive pay, such as Hostile Fire/Imminent Danger Pay (HFP/IDP), Assignment Incentive Pay (AIP), Hardship Duty Pay (HDP), Hazardous Duty Incentive Pay (HDIP) and pay for parachutists (“jump pay”) or aviators; and
- Military retirement, disability and Post 9-11 GI Bill stipends.
The overarching theme in Virginia domestic relations law is that the court is charged with protecting the best interests of the child. Therefore, all resources available to a parent should be considered when calculating an amount of child support. It is important for both parties in Virginia child support cases to understand that the court will include all forms of military pay and benefits, taxable or non-taxable, in the servicemember’s gross income when calculating support.
Additional Considerations for Virginia Child Support Cases Involving Servicemembers
Although Virginia is a guidelines state for child support, Virginia law does feature many nuances that might work to the benefit of either party in a case involving a servicemember. For example:
- Virginia courts can require a parent who is ordered to pay child support to also maintain a life insurance policy naming the child as the beneficiary. Since servicemembers are permitted to designate the beneficiaries of their SGLI benefits, the court is likely to require the servicemember to do so for the benefit of the child (for as long as the servicemember is ordered to pay child support).
- The court may also include in its child support order a provision regarding tax dependency exemptions for the child(ren), entitling one parent or the other to claim the child(ren) for purposes of federal and state taxes. Servicemembers who provide significant support throughout the year may want to request that the court award them the dependency exemptions (particularly since child support is non-taxable income to the recipient).
- Virginia law also permits the court to assess income to a parent for the value of a non-monetary benefit that the parent receives. Accordingly, BAH income may be imputed to a servicemember who lives in non-privatized, military housing.
- As stated above, the court may deviate from the guidelines in special circumstances. One circumstance that might warrant a deviation on behalf of a servicemember is transportation costs. Virginia Code §20-108.1 states that the court may deviate from the guidelines based upon evidence of the arrangements regarding custody of the children, including the cost of travel for visitation. A servicemember who, as a result of military service, does not live in the immediate area of his/her child, and incurs transportation costs in order to see the child, should always consider seeking a deviation from the guidelines based on those costs.
- The court may also deviate from the guidelines in cases where its child support order mandates direct payments “for maintaining life insurance coverage [for the benefit of the child], education expenses, or other court-ordered direct payments for the benefit of the child.”
Military Pay and Spousal Support in Virginia
Unlike child support, Virginia does not have a statewide formula for determining a “presumptive” amount of spousal support in all cases. Instead, Virginia Code §20-107.1 merely lists factors the court must consider in determining spousal support. The law only requires that the court consider all of evidence presented, in light of these factors. If the court finds that spousal support is appropriate then it must decide both the amount and duration of support.
The §20-107.1 spousal support factors include: the obligations, needs, financial resources/income of the parties; the standard of living established during the marriage; how long the parties were married; the earning capacity and education of the parties; the opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability; the decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market; the extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and such other factors, including the tax consequences to each party, “as are necessary to consider the equities between the parties.”
Some of the servicemember’s pay that is considered income for the purposes of child support should not considered in determining spousal support. Specifically, disability pay may not be included in the servicemember’s income for purposes of spousal support. The servicemember can also argue for the exclusion of BAH in spousal support cases where the amount the servicemember pays in rent/mortgage equals or exceeds the BAH amount, or where the servicemember participates in the Military Privatization Housing Initiative (MPHI). Post 9-11 G.I. Bill benefits may also be excluded from income, depending on the expenses of the recipient.
In many cases a servicemember’s spouse will argue that he or she was unable to pursue an education or career because of the constant moving, deployments, and support that a military lifestyle requires. Unless the servicemember successfully rebuts this argument—which can be difficult—the court could use it as a basis for awarding spousal support in a higher amount or for a longer duration.
As with child support, Virginia spousal support law does feature many nuances that might work to the benefit of either party in a case involving a servicemember.
Virginia child or spousal support cases involving servicemembers involve a complex intersection of state law and federal pay and benefits. Representation by an attorney experienced with military cases is essential for both parties. Livesay & Myers, P.C. has teams of family law attorneys in Fairfax, Ashburn, Manassas and Fredericksburg, Virginia, with years of experience handling military divorce and support cases in Northern Virginia. Contact us to schedule a consultation today.