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TMAN14
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bah and child support in texas
      #147895 - 09/19/06 08:02 AM

According to CFR.581(Federal regulations) it states that BAH BAS cannot be garnished for child support payments for calculating military child support, and my attorney will be arguing this in court, that child support payments should be based on base pay only. Anyone in Texas that is in the military had this issue come up? I know that Texas family law give the judge a lot of discretion in regards to child support payments.
Here is cfr 581:
CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT

PART 581--PROCESSING GARNISHMENT ORDERS FOR CHILD SUPPORT AND/OR ALIMONY--Table of Contents

Subpart A--Purpose and Definitions

Sec. 581.104 Moneys which are not subject to garnishment.

(a) Payments made pursuant to the provisions of the Federal Tort
Claims Act, as amended, sections 1346(b) and 2671 et seq., of title 28
of the United States Code;
(b) Payments or portions of payments made by the Department of
Veterans Affairs pursuant to sections 501-562 of title 38 of the United
States Code, in which the entitlement of the payee is based on non-
service-connected disability or death, age, and need;
(c) Refunds and other payments made in connection with overpayments
or erroneous payments of income tax and other taxes levied under title
26 of the United States Code;
(d) Grants;
(e) Fellowships;
(f) Education and vocational rehabilitation benefits for veterans
and eligible persons under chapters 30, 31, 32, 35, and 36 of title 38,
United States Code, and chapters 106 and 107 of title 10, United States
Code;
(g) Contracts, except where the contractor recipient performed
personal services and received payments in his/her capacity as an
employee of a governmental entity; and
(h) Reimbursement for expenses incurred by an individual in
connection with his/her employment, or allowances in lieu thereof, and
other payments and allowances, including, but not limited to:
(1) In the case of civilian employees:
(i) Uniform allowances;
(ii) Travel and transportation expenses (including mileage
allowances);
(iii) Relocation expenses;
(iv) Storage expenses;
(v) Post differentials;
(vi) Foreign areas allowances;
(vii) Education allowances for dependents;
(viii) Separate maintenance allowances;
(ix) Post allowances and supplementary post allowances;
(x) Home service transfer allowances;
(xi) Quarters allowances;
(xii) Cost-of-living allowances (COLA), when applicable to an
employee in a foreign area or an employee stationed outside of the
continental United States or in Alaska;
(xiii) Remote worksite allowance; and
(xiv) Per diem allowances.
(2) In the case of members of the uniformed services:
(i) Position pay (Navy only);
(ii) [b]basic allowance for quarters[/b] ;
(iv) Station allowances;
(v) Armed Forces health professions scholarship stipends;
(vi) Public Health Service scholarship stipends;
(vii) Travel and transportation allowances;
(viii) Dislocation allowances;

[[Page 616]]

(ix) Family separation allowances;
(x) ROTC subsistence allowance;
(xi) Allowance for recruiting expenses;
(xii) Education allowances for dependents;
(xiii) Clothing allowances for enlisted personnel;
(xiv) Uniform allowances; and
(xv) Personal money allowances for General and Flag officers, and
for the Surgeon General of the United States.
(3) In the case of volunteers serving under either the Domestic
Volunteer Service Act or the Peace Corps Act, all allowances, including,
but not limited to, readjustment allowances, stipends, and
reimbursements for out-of-pocket expenses.
(i) Moneys due a deceased employee obligor where the amounts are
reimbursement for expenses incurred by the deceased employee in
connection with his/her employment, or allowances in lieu thereof,
including:
(1) Per diem instead of subsistence, mileage, and amounts due in
reimbursement of travel expenses, including incidental and miscellaneous
expenses in connection therewith;
(2) Allowances on change of official station;
(3) Quarters allowances; and
(4) Cost-of-living allowances (COLA), when applicable as a result of
the deceased employee obligor's having been in a foreign area or
stationed outside of the continental United States or in Alaska.
(j) Supplemental Security Income (SSI) payments made pursuant to
sections 1381 et seq., of title 42 of the United States Code (title XVI
of the Social Security Act).

[45 FR 85667, Dec. 30, 1980, as amended at 48 FR 26280, June 7, 1983; 55
FR 1356, Jan. 16, 1990; 56 FR 36724, Aug. 1, 1991; 58 FR 35846, July 2,
1993; 60 FR 5044, Jan. 25, 1995; 63 FR 14758, Mar. 26, 1998]




Thanks
TMAN [b]bah[/b]


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matart1
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Re: bah and child support in texas [Re: TMAN14]
      #147900 - 09/19/06 08:15 AM

I can only tell you what happened to my husband when he was going through his divorce in FL.

he was an E-5 in the Navy stationed in VA and cs was calculated in FL and it included Base pay, Comrats and BAH/BAS.
with all of that calculated together I think he was making roughly 30k a year and cs was mandated to $976.02 for 2 kids.

when he went on the boat, it did make for adjust considering how the allowances go.

good luck to you.

anything goes in court.

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elliesmom
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Re: bah and child support in texas [Re: matart1]
      #147907 - 09/19/06 08:34 AM

This law technically states that they cannot GARNISH this pay for CS, not that it can't be considered. However the implication is there. My DH was going to argue this, however she ended up settling so it didn't matter. Good luck, and do let us know how it goes.

The first time he went through it they calculated it based on his base pay, sub pay, sea pay, BAH (that he wasn't getting as he was living in the barracks), BAS, and FSA. He tried to explain that FSA would go away as well as BAH, but it didn't matter. Again, good luck.

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Miranda
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Re: bah and child support in texas [Re: elliesmom]
      #147915 - 09/19/06 08:48 AM

It really depends. BAH is for the member and his/her family. Since my H was the custodial parent with kids living with him it was not included in any formula. Our lawyer argued it successfully. But I can see if the NCP was getting BAH II (which was given for the purpose of child support) or BAH with dependent rate, then why wouldn't it be included? If someone is getting a dependent rate of an allowance for his dependents, then why shouldn't it be included.

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TMAN14
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Re: bah and child support in texas [Re: Miranda]
      #147921 - 09/19/06 09:40 AM

I will go back to court on this matter next month, and I will let you all know the outcome.
God bless

Edited by TMAN14 (09/19/06 09:40 AM)


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Emily67
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Re: bah and child support in texas [Re: TMAN14]
      #147924 - 09/19/06 09:49 AM

Miranda, I can see if someone is receiving BAH w/depn because they are paying CS having it considered but only to a point, they should subtract the BAH-II amount from the BAH from the area and only consider that. Some states make it diffcult to modify CS and if some transfers from a high cost to low cost area, they are going to have financial issues based on CS considering the high cost rate, it isn't fair.

We really get it in the shorts, my husband only gets BAH w/o because he is married to me and I get BAH with but yet his CS is based on the BAH with amount although military regulations disallow him getting that allowance.....member to member marriages don't allow the person paying CS to a previous spouse to get BAH with....


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Miranda
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Re: bah and child support in texas [Re: Emily67]
      #147930 - 09/19/06 09:57 AM

Right. I agree only the difference with dependents *should* be considered but that is not the way it is in many states.

It is no different when they count BAH and the person lives on base, ouch!

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TMAN14
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Re: bah and child support in texas [Re: Miranda]
      #147938 - 09/19/06 10:09 AM

BAH is an entitlement and not taxable income. This is why this federal regulation CFR. 581 says that you cannot garnish from bah.

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matart1
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Re: bah and child support in texas [Re: TMAN14]
      #147943 - 09/19/06 10:26 AM

good luck to you.

what the regulations say and what happens in the court room are two different things.

....being on a deployment and having your rights protected by Soldiers Sailors and Relief Act is supposed to be in effect also but each time my husband(we were not married during his time period but engaged) went on a deployment his ex seemed to always have a court case hearing and everything was awarded in her behalf and when my husband would try to explain his deployment and invoke SSRA with accompanying command letters explaining his whereabouts the judge would basically say what amounted to as tough luck for you.....their divorce lasted just roughly under 3 years and it was a very ugly process as he was on sea duty....

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Miranda
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Re: bah and child support in texas [Re: TMAN14]
      #147969 - 09/19/06 11:37 AM

[quote]BAH is an entitlement and not taxable income. This is why this federal regulation CFR. 581 says that you cannot garnish from bah. [/quote]

Garnishing from BAH and including it in CS calculations are two separate things.

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TMAN14
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Re: bah and child support in texas [Re: Miranda]
      #148019 - 09/19/06 01:50 PM

[quote][quote]BAH is an entitlement and not taxable income. This is why this federal regulation CFR. 581 says that you cannot garnish from bah. [/quote]

Garnishing from BAH and including it in CS calculations are two separate things. [/quote]
I totally disagree CS calculations should be based on base pay only, and in accordance with this federal regulation.
Military base pay gets garnished for child support payments, and is based on net disposable earnings, which does not include BAH and BAS.


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elliesmom
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Re: bah and child support in texas [Re: TMAN14]
      #148020 - 09/19/06 01:53 PM

While I (and Miranda) may agree that it SHOULDN'T be included, a judge is free to do whatever the h3ll he wants. I gave you an example, family separation allowance, that WAS included in my DH's CS from his divorce. That money ceased the minute they divorced. The judge didn't give a sh1t. Good luck, but be prepared, they may not see it the way you want.

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Forgiveness is...letting go of the hope that the past can be changed.


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TMAN14
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Re: bah and child support in texas [Re: elliesmom]
      #148022 - 09/19/06 02:01 PM

[quote]While I (and Miranda) may agree that it SHOULDN'T be included, a judge is free to do whatever the h3ll he wants. I gave you an example, family separation allowance, that WAS included in my DH's CS from his divorce. That money ceased the minute they divorced. The judge didn't give a sh1t. Good luck, but be prepared, they may not see it the way you want. [/quote]
This is the same thing my attorney told me, but they will still agrue this point in court, and they are trying to settle this issue with my soon to be ex, but my soon to be ex attorney is not returning phone calls, faxes to my attorney and my attorney is going to court file a motion to quell my soon to be ex attorney to court.


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jil_stevens
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Re: bah and child support in texas [Re: TMAN14]
      #148098 - 09/19/06 05:20 PM

State law where I live states that all military benefits are to be incl in the calculation.

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TMAN14
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Re: bah and child support in texas [Re: jil_stevens]
      #148302 - 09/20/06 06:30 AM

[quote]State law where I live states that all military benefits are to be incl in the calculation. [/quote]
What state is this?


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Miranda
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Re: bah and child support in texas [Re: TMAN14]
      #148328 - 09/20/06 08:39 AM

Many states list that every source of income could be considered for child support. It is not just soley to screw military... people who receive car allowances and yearly/quarterly bonuses are also affected and income from all sources is taken into the equation.

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jil_stevens
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Re: bah and child support in texas [Re: Miranda]
      #148532 - 09/20/06 04:26 PM

Exactly...I was talking about Colorado, but it isn't just military. Some business people get car allowances, housing allowances, etc. and those must be counted. If your job provides you with a roof over your head, you must also count the monthly value of that because it saves you from paying rent.

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TMAN14
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Re: bah and child support in texas [Re: jil_stevens]
      #148692 - 09/21/06 06:23 AM

[quote]Exactly...I was talking about Colorado, but it isn't just military. Some business people get car allowances, housing allowances, etc. and those must be counted. If your job provides you with a roof over your head, you must also count the monthly value of that because it saves you from paying rent. [/quote]
Like I said in my earlier post an active duty members BAH, BAS, should not be counted for number 1 bah and bas always changes from location to location, and remember bah, bas are entitlements, it dosn't make sense to keep modifying child support every time you change duty stations, This is why there is a federal regulation that says you cannot garnish these entitlements.


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matart1
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Re: bah and child support in texas [Re: TMAN14]
      #148697 - 09/21/06 07:09 AM

well like I said - what is written and what is deviated against in court are two different things.

my husband's cs was calculated with Base pay, Comrats and BAH/BAS.....and when he went on a boat deployment his pay was so messed up because of course Comrats goes away and he had to wait till Flight Deck pay kicked in to offset.

cs was based upon his total pay and allowances per month.

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Lucy44
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Re: bah and child support in texas [Re: matart1]
      #148715 - 09/21/06 08:58 AM

I've even heard that judges often calculate the value of base housing, and include that as income for the purpose of calculating cs.

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TMAN14
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Re: bah and child support in texas [Re: Lucy44]
      #148720 - 09/21/06 09:16 AM

[quote]I've even heard that judges often calculate the value of base housing, and include that as income for the purpose of calculating cs. [/quote]
If you go to the Texas attorney general's website they have a tax chart that is used assist courts in calculating child support, you must compute the gross income first to get your montly gross income, then plug it into the tax chart which will give your net montlhy income , and the w-2 form tells you your actual gross income.


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TMAN14
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Re: bah and child support in texas [Re: TMAN14]
      #148724 - 09/21/06 09:42 AM

I just spoke with the Texas attorney's generals office and they said they go off a military members base pay, and they have a military pay chart that they use.

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matart1
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Re: bah and child support in texas [Re: TMAN14]
      #148727 - 09/21/06 09:50 AM

well good luck to you and keep us posted.

I can imagine we're all pretty curious as to the outcome considering our been there and done that senarios.

what is the other side using to determine cs?

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TMAN14
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Re: bah and child support in texas [Re: matart1]
      #148740 - 09/21/06 10:39 AM

[quote]well good luck to you and keep us posted.

I can imagine we're all pretty curious as to the outcome considering our been there and done that senarios.

what is the other side using to determine cs? [/quote]
The other side is trying figure in bah and bas, and her side continues not return my attorney's phone calls and faxes, and my attorney next week will file a motion to compel her attorney to court for mediation, sometimes I wonder if the other side still has an attorney or has paid the attorneys fees?


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Anon06
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Re: bah and child support in texas [Re: TMAN14]
      #148896 - 09/21/06 07:16 PM

(I just spoke with the Texas attorney's generals office and they said they go off a military members base pay, and they have a military pay chart that they use)

OOOOKKK fair warning I worked for the AGs office in Texas prior to joining the military and I am telling you,have a good attorney who is willing to fight for you because they will tell you one thing then turn around and do another and when I worked there,there were cases involving service members and they would ask for the members LES for the last 6 to 12 Months and award the amount of child support based on all pay not just base pay so you be very careful when dealing with the Texas ags office also a word of advice please keep all of your bank records and reciepts from where you paid the support or next thing you know they will say you owe thousands of dollars in back pay or they will charge outrageous interest rates for what they will call missed payments,meaning that even though DFAS will take it out of your pay before you recieve it,Texas takes their time processing the payments and as a result many times your stbex will get double payments for one month but they will then say that you didnt make a payment in the prior Month so you MAKE sure to keep up wit all payments you made because when you question them and ask for an audit they will take their time doing the audit and finally say oh youre right you are current but by that time they will have already flagged your income tax return so you will not get it usually they will hold it for 90-120 days to give you time to prove you are current with your support meaning another audit but if the audit isnt done before your time runs out to prove youre current guess who gets your income tax return?if you guessed your ex then youre correct unless money is owed to the state again be very careful.Hire A Good ATTORNEY

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TMAN14
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Re: bah and child support in texas [Re: Anon06]
      #149024 - 09/22/06 06:21 AM

[quote](I just spoke with the Texas attorney's generals office and they said they go off a military members base pay, and they have a military pay chart that they use)

OOOOKKK fair warning I worked for the AGs office in Texas prior to joining the military and I am telling you,have a good attorney who is willing to fight for you because they will tell you one thing then turn around and do another and when I worked there,there were cases involving service members and they would ask for the members LES for the last 6 to 12 Months and award the amount of child support based on all pay not just base pay so you be very careful when dealing with the Texas ags office also a word of advice please keep all of your bank records and reciepts from where you paid the support or next thing you know they will say you owe thousands of dollars in back pay or they will charge outrageous interest rates for what they will call missed payments,meaning that even though DFAS will take it out of your pay before you recieve it,Texas takes their time processing the payments and as a result many times your stbex will get double payments for one month but they will then say that you didnt make a payment in the prior Month so you MAKE sure to keep up wit all payments you made because when you question them and ask for an audit they will take their time doing the audit and finally say oh youre right you are current but by that time they will have already flagged your income tax return so you will not get it usually they will hold it for 90-120 days to give you time to prove you are current with your support meaning another audit but if the audit isnt done before your time runs out to prove youre current guess who gets your income tax return?if you guessed your ex then youre correct unless money is owed to the state again be very careful.Hire A Good ATTORNEY [/quote]
Thanks for the heads up, I have already hired a good attorney and she said that she will fight for me, and get this issue settled.


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Chrissy33
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BAH and Child Support in NH [Re: TMAN14]
      #152257 - 10/01/06 02:08 PM Attachment (118 downloads)

Hi!
My divorce was final in May '06. My ex lives in Texas and is in the AF. I live in NH and am not. We have two children. Child support was calculated and included in BAH and now he is taking me back and said it shouldn't be. I get 992. a month for two kids. What is right? How can I check into this? Because he is in Texas, I am a solo parent. I do everything and he never has to spend any extra money on the kids just the child support and now he doesn't even want to do this. I am stressed and confused about this whole thing. If I didn't need the money for the girls it wouldn't be an issue, but money is extremely tight. Any help would be greatly appreciated. Thanks!


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elliesmom
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Re: BAH and Child Support in NH [Re: Chrissy33]
      #152284 - 10/01/06 02:53 PM

992/mo may not seem like much, but when he wants to see his kids it will cost him more than that in airline tickets. How fair is it to price him out of being able to see his kids? Being that far apart is hard on everyone, but consider this: your kids will forget most of the material things provided to them, but never be able to get over the lack of closeness with their father. I would be far more concerned about that than the money. Maybe the two of you can work something out, where the CS doesn't include BAH as long as he has them visit at least 3 times per year.

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Chrissy33
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Re: BAH and Child Support in NH [Re: elliesmom]
      #152307 - 10/01/06 04:38 PM

I am not saying 992. isn't enough, but he wants to even lower that more. The girls are only 3 and 5 and he has never been into them. Even now we are lucky if he calls once a week. HE has replaced them with a girlfriend and I think even new family. The girls being away from their father is a good thing. He is abusive and clueless. I thought he might step up to the plate as a part time dad, but I was wrong. I have encouraged him to read stories to them online and communicate every night, but he has a lot going on...you know going out drinking and partying now that he is single again. It is sad for the girls, but my family is very invovled with the girls. Hopefully one day I will get remarried and have a man that loves the girls as a father should and want ot be part of their life. I am sad that he isn't a good dad. My dad was awesome. I am even more frustrated because he now doesn't really want to help finacially support them too. :(
That sounds like a good idea for him to visit them, but he won't he always has an excuse. He hasn't seen them in 9 months. :(


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elliesmom
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Re: BAH and Child Support in NH [Re: Chrissy33]
      #152318 - 10/01/06 04:59 PM

He may visit more often with a financial incentive such as, if he fails to exercise minimal visitation (like holidays for example) it is grounds to reconsider an upward modification of child support. Obviously if he is deployed during those times some leeway should be given, but otherwise pooh on him. It may seem like bribery, but I don't see anything wrong with giving him a little financial leeway when he's doing the right thing, and taking it away if he is being a schmo. And you might be able to avoid a court appearance and a trip to texas. He'd be a fool to refuse such an offer and deserves what he gets if he does.

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TMAN14
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Re: BAH and Child Support in NH [Re: Chrissy33]
      #152319 - 10/01/06 05:02 PM

Your ex has a legit fight about bah not being caclulated in CS, federal regulations say it shouldn't, and I know it says some were in Texas family law that a parent's long distance travel to have access to their kids should be considered. Your ex should care enough to spend time with his kids, because if he dosen't, his kids will regret him in the long run.

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TexasMommy2006
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Re: BAH and Child Support in NH [Re: TMAN14]
      #239492 - 05/23/07 02:09 PM

Our divorce was final in March 2006 and child support was calculated using his base pay, bas, bah, clothing allowance (divided by twelve months). He had a run of the mill lawyer who spelled our name wrong time after time and a different birthdate for our daughter time after time. I went with a retired JAG lawyer.

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amberhobo
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Re: bah and child support in texas [Re: TMAN14]
      #797796 - 12/26/12 11:59 AM

Check out (C) (3) of the Texas Statutes - Im not a lawyer but it sounds like BAH to me:


154.062. NET RESOURCES. (a) The court shall calculate
net resources for the purpose of determining child support
liability as provided by this section.
(b) Resources include:
(1) 100 percent of all wage and salary income and other
compensation for personal services (including commissions,
overtime pay, tips, and bonuses);
(2) interest, dividends, and royalty income;
(3) self-employment income;
(4) net rental income (defined as rent after deducting
operating expenses and mortgage payments, but not including noncash
items such as depreciation); and
(5) all other income actually being received,
including severance pay, retirement benefits, pensions, trust
income, annuities, capital gains, social security benefits,
unemployment benefits, disability and workers' compensation
benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.

(c) Resources do not include:
(1) return of principal or capital;
(2) accounts receivable; or
(3) benefits paid in accordance with aid for families with dependent children.

(d) The court shall deduct the following items from resources to determine the net resources available for child support:
(1) social security taxes;
(2) federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;
(3) state income tax;
(4) union dues; and
(5) expenses for health insurance coverage for the obligor's child.


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