Calculating child support and alimony is a cornerstone of nearly every Florida divorce. The process hinges on accurately determining each spouse’s income to establish need, ability to pay, and the application of state guidelines. For civilian couples with W-2 jobs, this is often a relatively straightforward process based on pay stubs and tax returns.
However, when one or both spouses serve in the United States military, the picture becomes significantly more complex. Military compensation is not just a simple salary. It is a unique tapestry woven from base pay, non-taxable allowances like BAH and BAS, and a myriad of special and incentive pays that can fluctuate based on duty station, job description, and deployment status.
Misunderstanding how Florida law treats these various components of military income is one of the most common, and potentially costly, mistakes in a military divorce. Is the non-taxable housing allowance counted? What about hazardous duty pay received only during deployment? Relying on civilian income calculation methods or, worse, taking your spouse’s word for it, can lead to child support or alimony orders that are drastically incorrect, leaving one party under-supported or the other unfairly burdened.
Demystifying military income for Florida support calculations requires a specific understanding of both state law and the structure of military pay. This is not just about math; it is about legal interpretation and strategic evidence presentation. Ensuring an accurate calculation is crucial for your financial stability, and it often requires the specialized knowledge of a Tampa military divorce lawyer.
Florida’s Broad Definition of “Gross Income”
The starting point for any support calculation in Florida is determining each party’s “gross income.” Florida Statute § 61.30(2)(a), which governs child support, provides a very broad definition. Gross income includes, but is not limited to:
- Salary or wages.
- Bonuses, commissions, allowances, overtime, tips, and other similar payments.
- Business income.
- Disability benefits.
- Worker’s compensation.
- Unemployment compensation.
- Pension, retirement, or annuity payments.
- Social Security benefits.
- Spousal support received from a previous marriage.
- Interest and dividends.
- Rental income.
- Income from royalties, trusts, or estates.
- Reimbursed expenses or in kind payments to the extent that they reduce living expenses.
- Gains derived from dealings in property.
The key takeaway is that Florida casts a very wide net. The legislature intended for “income” to encompass almost anysource of funds or financial benefit that reduces a person’s living expenses, regardless of whether it is taxable or comes from traditional employment. This broad definition is critical when analyzing military pay. While alimony calculations under Florida Statute § 61.08 involve more factors than just income (like need, ability to pay, standard of living, duration of marriage, etc.), the accurate determination of gross income is still the fundamental starting point for assessing the “ability to pay.”
Deconstructing Military Pay: Base Pay, Allowances, and S&I Pays
To understand how Florida law applies, you first need a basic grasp of the main components of military compensation:
- Base Pay: This is the fundamental salary component, based on the service member’s rank and years of service. It is taxable income and is universally included in gross income calculations for both child support and alimony.
- Allowances: These are non-taxable sums provided to cover specific needs. The two most significant are:
- Basic Allowance for Housing (BAH): Provided to service members who do not live in government-provided housing (barracks or base housing). The amount varies based on rank, dependency status (with or without dependents), and the designated duty station’s location (meant to reflect local housing costs).
- Basic Allowance for Subsistence (BAS): Provided to service members to cover the cost of food. It is a flat monthly rate that varies slightly between officers and enlisted personnel but not typically by location.
- Special and Incentive (S&I) Pays: These are additional taxable payments provided for specific duties, skills, qualifications, or hazardous conditions. There are dozens of types, including:
- Hostile Fire Pay / Imminent Danger Pay
- Hazardous Duty Incentive Pay (HDIP – e.g., flight pay, dive pay, jump pay)
- Sea Pay (for duty on ships)
- Submarine Pay
- Assignment Incentive Pay (AIP – for difficult or less desirable assignments)
- Hardship Duty Pay (HDP – for assignments in austere locations)
- Special Duty Assignment Pay (SDAP – for demanding jobs)
- Reenlistment Bonuses (often paid in lump sums or installments)
Understanding which of these count as “income” under Florida’s broad definition is where the legal analysis begins, and where an experienced Tampa military divorce lawyer adds significant value.
BAH and BAS: Are Non-Taxable Allowances “Income” in Florida?
This is the single most common point of confusion and contention in military divorce support calculations. The argument often made by the service member is: “BAH and BAS aren’t taxed by the IRS, so they shouldn’t count as income for support.”
This argument consistently fails in Florida courts.
Florida Statute § 61.30 explicitly includes “allowances” in the definition of gross income. Furthermore, the inclusion of “in kind payments to the extent that they reduce living expenses” provides a secondary basis. BAH and BAS directly defray essential living costs (housing and food), freeing up other funds.
Florida Case Law is Clear: Numerous Florida appellate court decisions have affirmed that BAH and BAS must be included in gross income calculations for both child support and alimony purposes, despite their non-taxable status. The courts reason that these allowances represent real, accessible funds that contribute to the service member’s overall financial ability.
Why the Non-Taxable Status Doesn’t Matter (for Inclusion): The fact that the IRS does not tax these allowances is irrelevant to the Florida definition of gross income for support. Florida law is concerned with the availability of funds, not their tax treatment.
Important Nuances:
- Correct Rate: It is crucial to use the correct BAH rate. Is the service member receiving the “with dependents” rate or the “without dependents” rate? What is the rate for their specific duty station (e.g., MacDill AFB in Tampa)? Using an outdated or incorrect rate can significantly skew the calculation. Your Tampa military divorce lawyerwill verify this.
- In-Kind Housing: If a service member lives in government housing (on-base housing or barracks) and does notreceive BAH, they are receiving an “in-kind benefit” (free housing). Florida law allows the court to attribute the value of this free housing as income, often by looking at what the BAH rate would be for their rank and location.
- Tax Implications for Net Income: While BAH/BAS are included in gross income, their non-taxable status isrelevant when calculating net income. When determining allowable deductions (like income tax), the calculation must account for the fact that a portion of the gross income is not subject to tax. Florida Child Support Guidelines Worksheets and specialized software typically handle this “tax gross-up” calculation, but it is a potential pitfall if done manually. An experienced Tampa military divorce lawyer ensures this calculation is performed correctly.
Bottom Line: In Florida, BAH and BAS are income for support calculations. Period.
Special & Incentive Pays: The “Regular and Continuing” Test
While BAH and BAS are almost always included, the treatment of S&I pays is more nuanced and depends heavily on the specific nature of the pay. The key legal question is whether the specific pay is regularly received and reasonably expected to continue.
- Clearly Included: Special pays that are consistently received month after month due to the service member’s ongoing job or qualifications are generally included in gross income. Examples often include:
- Flight Pay (HDIP for aircrew members)
- Sea Pay (for sailors assigned to ships)
- Special Duty Assignment Pay (SDAP for specific demanding roles)
- Basic Parachute Jump Pay These are typically tied to the member’s permanent role or qualifications and are expected to continue as long as they hold that role.
- Potentially Excluded or Averaged: Pays that are temporary, sporadic, or directly tied to a specific, non-recurring event might be treated differently. Examples include:
- Hostile Fire Pay / Imminent Danger Pay: Received only while deployed to a designated combat zone. A judge might include it if deployments are frequent and predictable for that member’s unit/job, perhaps averaging it over 12-36 months. Alternatively, if it is clearly tied to a specific, finished deployment, a Tampa military divorce lawyer could argue it should be excluded as non-recurring.
- Hardship Duty Pay (HDP): Tied to a specific location. If the service member is about to PCS away from that location, the pay will cease. Arguments can be made to exclude future HDP if the move is imminent and certain.
- Large, One-Time Reenlistment Bonuses: These are often treated as assets subject to equitable distribution rather than income for ongoing support. However, if paid in annual installments, those installments might be considered income for the years they are received. This requires careful analysis.
- PCS Allowances (DLA, TLE/TLA): Dislocation Allowance (DLA) and Temporary Lodging/Living Allowances (TLE/TLA) are generally considered reimbursements for specific moving expenses and are typically not included as income for support calculations.
The LES is Key: The service member’s Leave and Earning Statement (LES) is the primary source document. It itemizes every type of pay and allowance received for that month. A thorough review of multiple recent LES statements (ideally 12 months’ worth) by your Tampa military divorce lawyer is necessary to:
- Identify all S&I pays being received.
- Determine the amounts and frequency.
- Establish a pattern of receipt to argue whether they are “regular and continuing.”
Expect disputes over S&I pays. The service member may argue a specific pay is “about to end,” while the receiving spouse argues it has been consistently received for years. Your lawyer must be prepared to present evidence (LES history, assignment orders, etc.) to support your position.
Other Potential Income: Beyond the Paycheck
Judges will also look at other financial benefits available to the service member:
- VA Disability Compensation: This is a complex area. Federal law (the USFSPA) explicitly excludes VA disability pay received in lieu of waived military retirement pay from the definition of “disposable retired pay” divisible as property. However, Florida courts can consider VA disability payments as a source of income when calculating child support and alimony. This distinction is critical.
- GI Bill / Educational Benefits: Monthly housing allowances (MHA) received under the Post-9/11 GI Bill might be considered income if the funds are actually used to reduce the student’s living expenses. This is fact-specific. Tuition payments made directly to a school are generally not income.
- Income from Other Sources: Just like civilians, any income from off-duty employment, investments, rental properties, etc., is included in the gross income calculation.
Proving Income: The Leave and Earning Statement (LES) is Your Roadmap
You cannot calculate support without accurate income figures. In a military divorce, the Leave and Earning Statement (LES) is the single most important financial document. It is the military equivalent of a civilian pay stub, but far more detailed.
Why the LES is Crucial:
- It provides a monthly snapshot of all components of pay: base pay, BAH, BAS, all S&I pays, allotments, and deductions.
- It verifies rank, years of service, and dependency status, which impact pay rates.
- Reviewing a series of LES statements (6-12 months) allows your Tampa military divorce lawyer to establish average income, identify fluctuating pays, and counter claims that certain income is not “regular.”
Obtaining the LES: Your spouse is required to provide their LES as part of Mandatory Disclosure. However, in high-conflict cases, they may provide incomplete or outdated statements. Your Tampa military divorce lawyer will use formal discovery tools (like a Request for Production) to demand a full year’s worth of LES statements. If necessary, we can even subpoena records directly from the Defense Finance and Accounting Service (DFAS), although this is a slower process.
Reading the LES: Understanding the LES requires familiarity with military acronyms and pay codes. Key sections include:
- Entitlements: Lists base pay, BAH, BAS, and all special pays received that month.
- Deductions: Shows taxes, SGLI (life insurance), TSP (Thrift Savings Plan) contributions, etc.
- Allotments: Voluntary deductions sent to specific accounts or individuals (sometimes used to hide money).
- Remarks: Often contains important notes about upcoming pay changes, bonuses, or leave balances.
A lawyer inexperienced with military cases may misinterpret the LES, leading to significant errors in income calculation. Ensure your Tampa military divorce lawyer routinely works with these documents.
From Gross to Net: Calculating Support
Once gross income (including base pay, BAH, BAS, and regular S&I pays) is established, the process follows Florida’s standard methodology:
- Calculate Net Income: Subtract allowable deductions from gross income. These typically include:
- Federal, state, and local income taxes (calculated carefully, accounting for non-taxable allowances).
- FICA or self-employment taxes.
- Mandatory retirement contributions (less common for active duty, more relevant for reservists or civil service).
- Health insurance premiums (excluding the portion paid for the child(ren) covered by the support order).
- Court-ordered support for other children.
- Spousal support paid pursuant to a court order from a previous marriage.
- Child Support Guidelines: The parents’ combined net monthly income is plugged into the Florida Child Support Guidelines Worksheet (Form 12.902(e)). The guidelines calculate a base support amount, which is then adjusted based on the timesharing schedule (number of overnights each parent has) and responsibility for child care and health insurance costs.
- Alimony Determination: Florida Statute § 61.08 requires the court to consider numerous factors for alimony, including the parties’ established standard of living, duration of marriage, age and health, contributions to the marriage, and, critically, the need of the requesting spouse and the ability to pay of the other spouse. The accurately calculated net income is the foundation for assessing the ability to pay.
Accuracy at the gross income stage is paramount, as errors will cascade through the entire calculation, potentially costing thousands of dollars over the life of the support obligation. A Tampa military divorce lawyer ensures this foundation is solid.
Common Pitfalls & High-Conflict Tactics to Watch For
- Claiming Allowances are Excluded: As discussed, this is legally incorrect in Florida but still frequently argued.
- Using Incorrect BAH/BAS Rates: Using outdated rates or the “without dependents” rate when they receive the “with dependents” rate.
- “Forgetting” S&I Pays: Failing to disclose consistent special pays on the Financial Affidavit.
- Misrepresenting Pay Duration: Claiming a special pay is “ending next month” when assignment orders show otherwise.
- Hiding Second Jobs or Bonuses: Failing to disclose income from off-duty employment or significant lump-sum payments.
- Delaying Discovery: Refusing to provide complete LES statements or tax returns, requiring your Tampa military divorce lawyer to file motions to compel.
An attorney experienced in military cases anticipates these tactics and knows how to counter them with aggressive discovery and precise legal arguments.
Conclusion: Precision Matters in Military Support Calculations
Calculating child support and alimony in a Florida military divorce is a specialized task. The unique structure of military pay, particularly the inclusion of non-taxable allowances like BAH and BAS and the varied nature of special pays, requires more than just a basic understanding of Florida’s support laws. It demands specific knowledge of military compensation and the case law interpreting how it applies.
Errors in identifying and quantifying income can lead to support orders that are fundamentally unfair and fail to meet the needs of the family or overburden the paying spouse. Whether you are the service member or the civilian spouse, ensuring accuracy is critical to your financial future.
Do not leave these complex calculations to chance or accept your spouse’s interpretation without verification. Partner with a Tampa military divorce lawyer who routinely handles cases involving service members stationed at MacDill AFB and elsewhere. They possess the necessary expertise to decode the LES, accurately calculate income according to Florida law, and advocate effectively for a fair support order, ensuring your financial mission concludes successfully. Ensure your Tampa military divorce lawyer has this specific experience. A qualified Tampa military divorce lawyer is essential. Choose your Tampa military divorce lawyer carefully.
Frequently Asked Questions (FAQ)
Is my spouse’s BAH and BAS really counted as income for child support in Florida? Yes. Despite being non-taxable by the IRS, Florida law and numerous court decisions clearly establish that BAH and BAS must be included in gross income when calculating both child support and alimony.
What about hazardous duty pay received during deployment? Is that income? It depends. If deployments and the associated special pays are frequent and predictable for that service member, a court may include it, possibly by averaging it over time. If it was clearly tied to a specific, completed deployment unlikely to recur immediately, your Tampa military divorce lawyer might argue to exclude it as non-recurring.
How do we prove my spouse’s military income? The primary document is the Leave and Earning Statement (LES). Your Tampa military divorce lawyer will obtain multiple recent LES statements through the discovery process to verify all components of pay, allowances, and special pays.
My spouse lives on base and doesn’t get BAH. Does that mean their housing isn’t counted? No. Living in free government housing is considered an “in-kind benefit.” A Florida court can assign a monetary value to this free housing (often based on what their BAH would be) and include that value in their gross income for support calculations.
Does VA disability pay count as income for support? Yes. While VA disability pay generally cannot be divided as property in a divorce, Florida courts can consider it as a source of income when determining a parent’s ability to pay child support or alimony.
The McKinney Law Group: Tampa Military Divorce Lawyers Focused on Fair Solutions
Our firm understands the demands of military life. We provide legal solutions for Tampa clients facing deployment, custody disputes, and benefit division during divorce.
Call 813-428-3400 or email [email protected] to arrange a consultation.