Deciphering Military Pay

Service members can receive compensation in a number of different categories. First, every service member will receive basic pay. This is their compensation for being enlisted as a service member. Certain service members will receive allowances in addition to their basic pay. BAH is the allowance for housing. This figure varies depending on the geographic area where the service member is due to differences in cost of living throughout the country. BAH should be added to the basic pay when determining income available for support. If a member is not receiving a housing allowance this may because they reside on base for free. In that scenario, the value of the benefit they are receiving in living for free should be imputed to them and tacked onto their income available for support.

BAS is an allowance to assist service members with food costs. The BAS is another allowance to include as income for support. Service members can receive additional pay for special skill sets or hazardous duty. Examples include flight pay, jump pay or service in particularly dangerous locations. This type of compensation should also be included when calculating income available for support. All of this information can be found on a service member’s leave and earnings statement (LES). It is important to obtain and review the LES in preparation for support proceedings. Many service members have access to their statements online or can request them via phone.

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Filing for Support

The first step in seeking support is to file a complaint with the Domestic Relations office. You can go to the office located in your county for assistance in filing. Through the child support program website you are now able to start a request for support online. Once a complaint is submitted, an initial support conference is scheduled for approximately four weeks later. Any support will be retroactive to the filing date so parties requesting support are not prejudiced during this time frame.

Both parties are directed to bring proof of income to their initial conference. This includes recent pay stubs and last filed tax return and W-2. Proof of certain expenses is requested as well. Relevant expenses may include health insurance premiums, mortgage payments, child care costs, and private school tuition. Parties who are unable to appear in person may request to appear by phone provided all the requested income and expense information is supplied in advance of the conference. The conference officer will use the information provided to do a calculation pursuant to the Pennsylvania guidelines. Parties can accept the calculation and enter a final order at the conference. Alternatively, parties can request a hearing if there are unresolved issues following the conference.

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Additions to Support Award

Pennsylvania utilizes support guidelines to determine the appropriate amount of basic support in each case. The Rules of Civil Procedure also contemplate other expenses that can be added to a support calculation. Child care expenses as needed to allow for employment can be added to the support award. The total amount of child care expenses should be adjusted to reflect the federal child care tax credit if applicable. Health insurance premiums that provide coverage for children and/or the other party can be allocated between the parties’ in proportion to their income. This is only applicable where a party is paying a portion of the premium as opposed to a scenario where the employer covers the full cost or a third party is providing the coverage.

Private school tuition can be added to a support order. Generally, parties should agree on private school costs prior to seeking to have them included in their support order. If a child always attended private school prior to parties separating, they will likely be permitted to continue in private school. If a child has not previously attended private school, whether or not they should now be permitted to is more of a legal custody question that should be dealt with in custody court prior to any inclusion in a support order. Summer camp pay also be added to the support award. These additional expenses are allocated between the parties in proportion to their income. Parties with comparable incomes would each pay roughly 50% of these added costs. Alternatively, in a scenario where there is a significant disparity income, the party earning more will pay a greater share of these added costs.

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Changes to Income

Once a support order is established each party is under a continuing obligation to notify the court of any changes income, employer or employment status. Changes income may impact the support order under the guidelines as the amount of support varies based on the income bracket the parties fall into. A reduction income does not necessarily mean the support order will change. The court can consider the reason behind the reduction income. A voluntary reduction income should have no effect on the support order. Voluntary reductions income are defined as a party taking a lower paying job, quitting or leaving a job, changing occupations or returning to school or being fired for cause. The purpose behind this provision is to make sure parties cannot benefit from attempts to escape or lower their support obligation.

A non-voluntary reduction in support may result in a change to the support award. Non-voluntary reduction income may result from a lay-off, illness, termination or job elimination. These are circumstances which the party has no control over. Even a party who faces a non-voluntary reduction income should take steps to resume employment as soon as possible. Prolonged failure to obtain employment can result in an earning capacity being imputed. Earning capacity is determined based on a party’s age, education, training, and prior work experience and earnings. For a party with limited or no prior work experience, an appropriate earning capacity may be minimum wage full time. For parties who have the skill set and education for a certain type of career, example nurse or IT specialist, the average income of someone in that career in the same geographic region as reflected by the Bureau of Labor Statistics can be useful in determining an appropriate earning capacity.

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Income for Support

Each party’s monthly income is evaluated for the purposes of determining an appropriate support order. Pennsylvania Rules of Civil Procedure dictate that each party’s monthly gross income based on at least a six-month window should be ascertained first. For purposes of support gross income includes all wages or salary, bonuses, commissions, business income, rental property income, pension or retirement payments, royalties and dividends, and income from an estate or trust, social security disability and retirement benefits, disability benefits, workers’ compensation, unemployment compensation and alimony. It also includes any other entitlement to money or lump sum awards such as lottery winnings, tax refunds, insurance compensation, settlements, awards or verdicts.

For income that is not received on a regular basis, it may be appropriate to average out the income over the course of a year. This may be applicable in the context of a bonus or other one time payment. Each party has an obligation to report any changes income after the establishment of a support order. Failure to timely report changes income can result in any subsequent modification of the support award being retroactive to the time of the failure to disclose. After identifying the gross income of the parties, the Rules then allow the following deductions to arrive at net income: federal, state, and local taxes, unemployment compensation taxes and local services taxes, FICA payments, non-voluntary retirement contributions, mandatory union dues and alimony paid to the other party.

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Support Guidelines

Pennsylvania utilizes support guidelines to determine the appropriate amount of support in each case. The initial step is to determine the net monthly income of the parties and who will be receiving the support. There is a rebuttable presumption that the amount of support as dictated by the guidelines is correct. In order to overcome this presumption a fact finder must make a determination that application of the guidelines would be unjust or inappropriate. The guidelines are reviewed every couple of years to make sure they are still appropriate given current costs of raising children and the poverty level. The goal of using support guidelines is to ensure that similarly situated parties are treated similarly.

Pennsylvania uses an “Income Shares” approach which presumes that children of separated parents should receive the same amount of support as a child in an intact family. There are a number of studies that demonstrate what an intact family spends on their children in proportion to their income and the guidelines reflect the average expenditures for children on a monthly basis. The primary focus is on the income of the parties however expenses may be considered and deviation from the guidelines may be appropriate where there are unusual or extraordinary expenses. A support award may be adjusted if the party owing support is already at poverty level and barely able to sustain their own basic needs. The 2016 federal poverty level for one person is income of only $990 per month. Outside of falling below the poverty level, it is unlikely a deviation from the guidelines would be warranted due to expenses.

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Support for Adult Children

In Pennsylvania, child support should terminate when the minor child is eighteen or graduate high school, whichever is later. However, in certain circumstances the obligation for support may continue past those milestones. One example would be if the child has a disability. Pennsylvania courts have held that the child support guidelines would continue to apply in the instance of a child who, despite age, remains unemancipated or unable to support themselves by virtue of a disability. The court is to determine if an adult child has a mental or physical condition that prevents the child from earning a living wage. Additionally, the court should look to see whether an order of continued support would result in undue hardship on the parents.

In Kotzbauer, 2007 Pa.Super. 357 (2007), Father appealed a support order for his nineteen year old daughter. The daughter had been diagnosed with epilepsy which led to seizures, brain malformations and migraine headaches several times a week. While she had a driver’s license, attended community college and had a part-time job, ultimately the trial court held that the evidence presented still established she was unable to support herself. She had poor grades in school due to an inability to focus, often missed work or left early, and relied on her Mother to keep up with all her prescriptions, medical appointments, food, clothing and housing. The majority of states recognize an on-going duty of support if adult children are unable to support themselves due to a demonstrable physical or mental condition impacting their ability to earn a supporting wage.

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Enforcement of Support

There are a number of remedies available to promote payment of support obligations within Pennsylvania. First, Pennsylvania does wage garnishment where possible to ensure payments are collected in full on a consistent basis. If a payor does fall behind, the court will call the party in for contempt proceedings. A payor who is able to catch up at the time of the contempt proceeding will usually avoid any further sanctions. Alternatively, if the court accepts a repayment plan offered by the payor there may not be any further enforcement remedies pursued. If a payor cannot make payment in full or offer a satisfactory plan for catching up on payments, they will have to go before a Judge to discuss their failure to keep up with their support obligations.

If a party fails to appear for contempt proceedings the court has the authority to issue a bench warrant to have that party taken into custody. Additionally, the court can order additional incarceration at subsequent support hearings as a means of reiterating the importance of regular support payments and demonstrating the severity of the punishment available for failure to comply. Other enforcement remedies include seizure of payments from a government agency such as unemployment compensation, social security, retirement or disability payments, seizure of works’ compensation benefits and seizure of retirement funds in pay status. The court may also place a lien on real property, seize funds from the payor’s bank, report overdue support to credit agencies and suspend licenses including occupational, driver’s and recreational.

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Supplemental Security Income

Supplemental Security income (SSI) is cash assistance to individuals who are disabled or over 65 years old. SSI can be payable to disabled children as well. Living arrangements may affect the amount of SSI received. You should report changes in living arrangements to the Social Security office. Similarly, relationship status may affect the amount of the benefit received. For example, the amount may be decreased following marriage depending on the income of the new spouse. If marrying another individual who receives SSI, the benefit may be converted from an individual benefit to a couple’s benefit.

Any other income or windfalls may also affect the payment. The changes may be temporary in the event of a one-time payment or more permanent in the event of employment. Payments may increase every year to account for cost of living adjustments. SSI is not be considered income for purposes of a support calculation. This is because SSI is a federal means-tested benefit. It operates as a welfare benefit. It is not meant to replace lost earnings but instead to provide some income to disabled people who would otherwise be poverty-stricken. Even though SSI cannot be considered, if a party is otherwise capable of working, income from employment can still be considered for a support award.

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SSD

Social Security Disability (SSD) benefits are payable to individuals who have a long-term disability that limits their ability to earn income. The disability payments are meant to replace the income the recipient would have received if they had not become disabled. Essentially, disability payments have been pre-paid by the recipient during their employment. Accordingly, the recipient must have a sufficient earnings history, or in other words have paid social security long enough, to be eligible for payments. Your benefit will remain the same whether you are single or married. The issue of social security disability benefits may arise in the context of a support action. Social security disability benefits are recognized as a source of income pursuant to Pennsylvania Rule of Civil Procedure 1910.16-2. Accordingly, a support order may require payment of a portion of the benefit received.

Benefits may also be payable to the children of the disabled party. Where child support is being calculated and the child(ren) at issue are receiving their own social security benefit, the amount of their benefit also must be accounted for in the support calculation. PA RCP 1910.16-2(b) goes into detail about the treatment of benefits received by the children in the context of support. The child’s benefit should be added to the net income of the parents for determining what the basic child support award should be based on the state guidelines. The amount of child support based on the support guidelines is then reduced by the amount of the child’s benefit. After the reduction, the appropriate support award would be calculated after considering each parent’s share of the support obligation based on their income, as well as other relevant factors such as health insurance costs and custody.

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