If you are a member of our military or a spouse of someone serving in our military, there are additional issues that arise during a divorce or legal separation proceeding that are specific to the military. You will need a military divorce attorney that understands these issues and has the knowledge and expertise to advise you and effectively represent you regarding these military issues and ensure that these issues are dealt with appropriately.
Where to File for Military Divorce
One of the first issues that arise in a military divorce is where it should be filed. Because a service member is stationed throughout the United States and the world the issue of where to file arises more frequently than with nonmilitary divorces. A divorce may be filed where the service member is stationed or the state that he or she is a resident of. The Law Office of Steven L. Fritsch can assist you in determining where to file.
The income of a service member is an area that requires knowledge specific to the military. An understanding of the service member’s paystub or Leave and Earnings Statement (LES) is necessary. A service member’s Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) are treated differently than his or her Basic Pay. There are also tax issues that arise depending on the state that the service member files taxes in. These issues will affect the amount of child support or spousal support that may be ordered by the court.
A service member may receive a pension when they are eligible. His or her spouse may have an interest in the pension and the divorce judgment will have to address this issue. The Law Office of Steven L. Fritsch will help and guide you regarding the pension and how or whether it will be divided.
Lastly, a service member is entitled to certain rights that non-service members do not get. Many of these rights fall under the Servicemembers Civil Relief Act and the exercise of these rights may affect the divorce immensely.
Basic Allowance for Housing After Divorce
Active duty military personnel who are receiving basic allowance for housing (BAH) are in for a rude awakening when child support and/or spousal support is calculated and are surprised as to how high the support can be. The reason is twofold.
First, when the court calculates child or spousal support, it must determine if the income is taxable or nontaxable. The court considers BAH and Basic Allowance for Subsistence (BAS), non-taxable income. Because this is “tax-free” income, the income will be higher for support calculations which generally means higher child and spousal support.
Second, even if the BAH is put in and taken out because the family is living in base housing, the court will still calculate the amount as nontaxable income. This is always a shocker to the military personnel because the money is put into the Leave and Earnings Statement (LES) but is taken right out and the common response is “I never see the money”. The court does not care and still includes it as nontaxable income. The reason is because although the money is being taken out, the person is still receiving the benefit of the housing and is therefore charged that amount. If the parties have separated and the military personnel’s spouse is living in base housing, the military person is still charged with the income but the amount can be deducted from whatever support is ordered.
In sum, military personnel should be aware of the income issues associated with BAH and BAS and should be prepared for support that can be ordered as a result of receiving BAH and BAS.
Steven L. Fritsch, Esq. has the knowledge and experience regarding the many legal issues that arise in a military divorce. As a family law attorney in San Diego County, he has represented numerous service members and spouses of service members in divorce and other family law matters. The Law Office of Steven L. Fritsch understands the sacrifice that service members and their families make. As such, Steven L. Fritsch offers a reduced hourly rate for active duty service members or their spouses. If you are a service member or spouse, please contact us today for your free consultation.