Military Divorce: BAH and Base Housing Rules

Military divorce can affect a service member’s or military spouse’s housing, financial obligations and eligibility for certain allowances.  Members of the United States military may be eligible for BAH and OHA benefits. It is important that you as the servicemember, or spouse of a service member, understand what these benefits are, who is entitled to receive them, how benefits are calculated, and why they are important when going through a divorce. This guide explains the issues to review during separation and in anticipation of divorce. 

What Is Basic Housing Allowance?

BAH is a non-taxable allowance provided to service members to offset their cost of housing. There are different types of BAH to account for the different situations that service members find themselves in. Depending on a service member’s dependency status, housing assignment and duty type, BAH will vary.  Specifically, there is BAH with and without dependents (BAH Type I), partial BAH (service members living in on-base government quarters without dependents), BAH reserve component/transit (BAHRC/T also referred to as BAH Type II) paid to reservists or National Guard members, and BAH differential (BAH-Diff), explained further below. 

Service members are generally eligible to receive BAH if assigned to a permanent duty station within the 50 United States and not living in furnished government housing. For those service members on unaccompanied overseas tours or having a dependent child reside with a former spouse, the service member may still be entitled to a portion of their BAH. The amount of BAH a service member is entitled to is dependent on their duty station, rank, and dependency status.

What Is Overseas Housing Allowance?

OHA may be available to service members stationed overseas (not in one of the 50 United States) who are not living in furnished government housing. Eligibility is based on the service member’s dependency status.  OHA is a cost-reimbursement allowance and is designed to offset housing costs.

However, if the service member with dependents is on an unaccompanied overseas tour, they are still eligible for BAH at the “with dependent rate” and a Family Separation Allowance (FSA), if the member is not living in government housing. All of these allowances are paid to the service member.  However, whether the service member is receiving BAH or OHA, a divorce may impact the amount of that allotment or the service member’s eligibility.

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Impact of Divorce on BAH and Housing

Until there is a judgment of dissolution of marriage, the military treats the spouses as if they are married and they may continue residing in military housing and receiving BAH, whatever their circumstances. This does not require they remain in military housing if they were residing there prior to seeking divorce, but it is an option.

As stated previously, the different types of BAH are based on the service member’s rank, duty station, and dependency status. These do not always change due to divorce, but they may.

For example, a service member with no dependents other than the spouse with whom they are divorcing will lose their dependency claim. Since BAH is computed with dependency status as a factor, this may result in the elimination of eligibility or reduction in this allotment payable to the service member. 

In the case of a service member who is subsequently assigned to government housing who is ordered to pay child support, they may be entitled to BAH-Differential. Eligibility for this allotment is determined by the service member’s living situation (as stated) and the amount of the monthly child support payment. The amount of BAH-Differential is determined by the Secretary of Defense and is published annually.

These are some examples of situations where a service member’s eligibility for BAH and amount of BAH available are impacted by divorce. However, they are merely two examples of many different types of situations that arise during separation or after divorce. This is why it is important that service members and military spouses speak with a knowledgeable family law attorney when contemplating or going through a divorce. 

The Impact of BAH on Child or Spousal Support

As just discussed, separation and divorce may impact aservice member’s eligibility for BAH and the amount they are entitled to. Thisis important to understand related to child and spousal support.

In California, a service members receipt of BAH is considered income available for purpose of setting support. Child support and temporary spousal support are calculated using a statewide formula. This formula is used in a computerized child support calculator used by local judges and includes such input factors as number of children, timeshare, and income from all sources.

BAH is nontaxable income which will be included in this formula to determine child or temporary spousal support. Note that, while not discussed here, BAH is not a divisible asset subject to community property laws in California.

It is important to understand the benefit so that it can be presented clearly to the court in establishing support.  When a benefit is being received, but ultimately the member spouse is not benefitting from it, and the benefit is going directly to the non-member spouse, the benefit may not be income available for support.  For example, a servicemember may relocate from the marital residence. The BAH being allotted is also deducted from the service member’s pay, so ultimately the BAH is going towards the supported spouse’s needs and housing costs and is not income or a benefit to the member spouse.

This may result in a support calculation that is offset against the amount of BAH or putting the BAH in the non-service member’s “nontaxable income” column. However, in such a case, it would be generally unreasonable to have the service member claim the BAH as additional income if they are not benefiting from it.

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BAH and Dependent Children

A service member with children should also recognize the impact of primary physical custody orders on their BAH.  If the service member is awarded primary physical custody, they will get to claim the child(ren) as a dependent.  Without dependents the BAH will be impacted.  It is important to evaluate the benefits of the BAH on the entire family and ensure that the language of orders clearly state physical custody terms to allow the service member to claim qualifying dependents.

Military Housing Post-Divorce

The military continues treating spouses as married until there is a divorce judgment. This means that the non-service member spouse is eligible to remain in military housing during the divorce process.

In fact, the non-military spouse is afforded 30 days after the divorce is finalized to remain in military housing. While it is beneficial for that spouse to start planning their inevitable move out of military housing before being divorced, this gives a 30-day buffer once the divorce is finalized.

Get Guidance on your Military Divorce with Cage & Miles

It is important to understand the impact of legal separation, divorce, and subsequent court orders on military benefits received by you or your family.  Our attorneys understand the unique legal issues involved in military divorce and can advise you on how they may directly affect your rights, benefits, finances, and family.