In Tennessee, BAH is included in income in determining child support. Tennessee’s child support law is based on what is referred to as an “income shares model.” The court setting child support will take into account the income of both parents as one of several factors when determining the amount of child support to be paid. Essentially, the higher the income of the non-custodial parent relative to the income of the custodial parent, the higher the amount of child support. By including BAH as income for the service member, the service member’s income will be higher, thereby making the child support higher.
The Tennessee Child Support Guidelines categorize BAH as a fringe benefit subject to inclusion as income. There are several situations that seem to make that rule a bit unfair for the service member and seem to result in a windfall for the custodial parent. For example, if the service member lives in an area where the cost of housing is extremely high relative to the cost of living where the custodial parent lives, the unintended consequence might be that the service member’s child support obligation is disproportionaly high. In such a situation, the service member’s attorney might argue for a deviation from the guidelines. A deviation can be granted when the court finds the amount of child support under the guidelines would be unjust and inappropriate, and the deviation would be in the best interest of the minor child.
Also, the Tennessee Child Support Guidelines operate under the assumption that all income is earned income subject to federal withholding and the Federal Insurance Contributions Act. Since BAH is nontaxable, the custodial parent might argue that an additional amount should be added to the BAH to cover the tax savings to the service member. After all, the amount paid by the custodial parent for housing is not tax free or tax deductible. Such an argument has been successfully made in a similar situation resulting in an even higher income for the service member.
Even before child support is set by the court, BAH can serve as the basis for determining a servicemember’s family support obligation. For example, the Army usually encourages family support at an amount equivalent to BAH at the “with dependent” rate. Although a servicemember can certainly provide more support than what is generally encouraged, BAH will usually be considered a minimum. This general rule is not binding on the courts. Civilian courts are free to set support at a different level, higher, lower or the same, without regard to the military’s rule. Once a civilian court sets support at a different level, the military will defer to the court’s ruling.
Regardless of your particular situation, having an experienced Tennessee child support attorney who is knowledgeable in the complexities of family law issues regarding military parents is essential.