For anyone who serves in the military an important case has come down that might affect their obligations to pay spousal support and child support.  The case is In re Marriage of Stanton, (11/24/10), 4 Civ D056713, Div 1 (McConnell) 2010 WL 4751776, in which the California appellate court held that a serviceman’s non-taxable allowances for housing and food are includible in his or her gross income for purposes of calculating child or spousal support.

In deciding this case of first impression, and in following a majority of out-of-state decisions, CA-4 concluded that:

  1. The Federal preemption issue may be considered on appeal because the trial court had the jurisdiction to consider it;
  2. Nontaxable status of military allowances does not mean that Congress intended federal law to preempt child or spousal support;
  3. Protection of military allowances from garnishment does not support preemption;
  4. USSCT authority exempts family law support matters from federal jurisdiction unless federal law requires preemption;
  5. BAH and BAS statutes do not specifically require preemption; and,
  6. Family Code Section 4058(a)(1) precluded the trial court from considering mother’s spousal support payments from father as part of her gross income for child support purposes.
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