Divorce disrupts any household it enters. But for military families, it can also disrupt their housing. Understanding how military divorce and BAH benefits interact can help you make wise choices when divorcing a military spouse or active-duty servicemember.
This is the second in a series on military benefits for divorced spouses. You can read the overview here. This post will focus solely on the “Basic Allowance for Housing” or BAH. Future blog posts will discuss additional topics related to ex-spouses’ military benefits.
How the Military Basic Allowance for Housing Works
While on active duty, the military pays for a servicemember’s housing and utilities through the “Basic Allowance for Housing” or “BAH.” This doesn’t automatically cover 100% of all housing related percentages, but it will pay for a substantial percentage of those costs for servicemembers who don’t live in government housing. The amount a servicemember receives in BAH depends on the servicemember’s :
Number of dependents
Generally, BAH is only paid to servicemembers living in family housing, rather than government barracks, unless the person’s family members are not authorized to live where the servicemember is stationed (such as certain overseas deployment). While married, many active duty military personnel use the BAH to provide housing for their spouses and children. But what happens to that military benefit when military families get divorced?
Who Gets the BAH Housing While a Military Divorce is Pending?
A military spouse remains a spouse in the military’s eyes until the final judgment of divorce is entered. That means that while a divorce is pending, both spouses have the same right to live in military housing. That said, most couples find it hard to live together while going through the divorce process. Generally, spouses separate before the divorce is complete – sometimes before the complaint for divorce is even filed.
In civilian courts, a judge can give one spouse temporary possession of the home while the divorce is pending. However, in an Army divorce, if spouses can’t live together, it is up to the garrison commander and the Staff Judge Advocate (SJA) to decide who will remain in the BAH housing. The active duty service member (or spouse with senior rank if both are serving) is considered the “sponsor.” However, the sponsor is not given preference in deciding who gets BAH housing during the divorce. Instead, the decision is generally based on the involvement of other dependent family members and the distance of any commute to the servicemembers’ duty station. Other branches have similar procedures.
Do You Still Get BAH After Divorce Without Dependents?
Once a judgment of divorce is entered, a former military spouse loses all access to BAH benefits. The divorce means that the spouse is no longer a service member’s dependent and is therefore not eligible to live in government housing. Typically, the former spouse will have 30 days to move out. Because of this, it is important to discuss your relocation plans with your attorney before the judgment is entered, so you know you will be ready to move when the time comes.
How the Allocation of Parental Responsibilities Affects BAH
Deciding custody in a military divorce presents a variety of challenges, such as deciding how to share parental responsibilities during deployment and planning strategies to keep parents and children connected when a military parent is suddenly reassigned. However, many military parents don’t consider how the allocation of parental responsibilities can also affect their entitlement to BAH. In some cases, if a military parent does not have custody of his or her children, that parent may lose their status of having dependents for BAH calculations, and be reassigned to government quarters on base. When that happens, the servicemember will no longer qualify for BAH military benefits.
However, if a service member is required to pay child support, a BAH-differential (or BAF-DIFF) can be added to their military compensation to pay for their children’s housing with their former spouse. A member of the military is only entitled to receive BAH-DIFF payments if their monthly child support amount is higher than the BAH-DIFF rate.
Using BAH Benefits in Calculating Support
Federal law controls who is eligible for BAH benefits. Colorado courts cannot give a former spouse access to a servicemember’s BAH payments. However, that doesn’t mean they are a total loss to the non-military spouse. Military regulations and Colorado family law both require parents to provide for their children, even after divorce. BAH and the “in-kind” benefit of barracks housing both count toward a servicemember’s income when it comes to calculating both child support and alimony payments. This calculation can get difficult, because a servicemember living in barracks housing may still be entitled to BAF-DIFF payments in certain circumstances.The complexity of BAH benefits is one reason why military spouses should work with a Colorado family attorney familiar with military compensation and benefits. At Aviso Law, LLC, our military divorce lawyers are veterans themselves. We understand military compensation, and know the options available to servicemembers and former military spouses alike. Because of our experience, we can assist with SJA housing determinations, calculate support amounts accounting for BAH-DIFF payments and in-kind housing, and make sure military families are protected and provided for. We are here to serve you and your family during your military divorce. Contact us today to schedule a consultation.