Illinois Matrimonial & Family Law

Military Pay and Child Support

by Wes Cowell, updated 8 June 2015 -- suggest a correction

All military allowances (BAH and BAS and anything else) are included in the child support calculation.

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I include this page simply because I get calls every week asking "Is my BAS and BAH included in my child support calculation?"  The short answer is "yes, they are included and there is no way around that."   Just accept that.  The rule is "all income from all sources."  Once the BAS and BAH (and any other allowances) have been included in "income," and the allowable deductions have been subtracted, the obligor may argue for a deviation from the statutory guideline amount of support under 750 ILCS 5/505(a)(2)(a) (financial ressources and needs of the child), (b) (financial resources and needs of the custodial parent), and (e) (financial resources and needs of the non-custodial parent).

This issue was first presented in Illinois in In re:  Marriage of McGowan, 265 Ill.App.3d 976, 638 N.E.2d 695, 202 Ill.Dec. 827 (Ill. App. 1 Dist., 1994).  It was a straightforward and clear opinoin:  Include all military allowances in income.  Period.  Then subtract deductions and then consider a deviation from the guidelines.

In In re Marriage of Baylor, 324 Ill. App. 3d 213, 753 N.E.2d 1264, 257 Ill.Dec. 638 (1st Dist, 2001) the Fourth District Appellate Court seemed a little irritated that it had to address this issue even though the First District had previously spelled out the answer in McGowan.  The Fourth District took the opportunity to spell out in detail the way these cases are to be handled:

On remand, the court should do the following, which are the steps that the court should have taken when it first addressed the issue of child support:

        (1) Determine Kim's net income, pursuant to section 505(a)(3) of the Act (750 ILCS 5/505(a)(3) (West Supp.1999) (effective June 1, 2000)), including her military allowances. Although not statutorily required, it would be desirable for the court to state how it calculated net income.

        (2) Determine the amount of child support that the statutory guidelines would require Kim to pay. See 750 ILCS 5/505(a)(1) (West Supp.1999) (effective June 1, 2000) (under the Act, a presumption exists that the stated percentage of the noncustodial parent's income is an appropriate level of support; the guideline amount for one child is 20% of the noncustodial parent's net income).

        (3) Indicate either that (a) it is ordering Kim to pay child support based on the statutory guidelines, or (b) after considering relevant factors under section 505(a)(2) of the Act (see 750 ILCS 5/505(a)(2) (West Supp.1999) (effective June 1, 2000)), including [the child's] needs and resources, the needs and resources of both parties, and the standard of living [the child] would have enjoyed had the marriage not been dissolved, it is deviating from the statutory guidelines. If the court deviates from the guidelines, it must explicitly state the reasons why it has chosen to do so. 750 ILCS 5/505(a)(2) (West Supp.1999) (effective June 1, 2000); see In re Marriage of Stanley, 279 Ill.App.3d 1083 1085, 216 Ill. Dec. 890, 666 N.E.2d 340, 341 (1996).

In re Marriage of Baylor, 324 Ill. App. 3d 213, 753 N.E.2d 1264, 257 Ill.Dec. 638 (1st Dist, 2001)

So, there you have it:  include all allowances as income, subtract allowable deductions, and then argue for a deviation from the guidelines.  Simple.