Members of the United States military may be eligible for a basic housing allowance (BAH) or Overseas Housing Allowance (OHA). It is important that you as the service member or non-service member spouse understand what BAH is, who is entitled to receive it, how it is calculated, and why you should care when going through a divorce. Read on to learn more about different types of BAH and how a divorce or separation may affect one’s BAH amount.
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. Specifically, there is BAH with and without dependents (BAH Type I), partial BAH (service members living on base without dependents), BAH reserve component/transit (BAH RC/T also referred to as BAH Type II), 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.
OAH 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.
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 (FSH), if the member is not living in government housing. 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.
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.
As just discussed, separation and divorce may impact a service member’s eligibility for BAH and the amount they are entitled to. This is important to understand if support, child or spousal, is at issue.
BAH is income available for support. Child support and temporary spousal support are calculated using a statewide formula. This formula is used in a computerized calculation program called the Dissomaster and includes such input factors as number of children, timeshare, and, as relevant here, income.
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.
In an ongoing divorce, where a judgment for divorce has not yet been entered, there may be a situation where the service member relocates from the marital residence. If the spouses were living in military housing, meaning that the BAH is both allotted and deducted from the service member’s pay, support orders should account for the non-service member spouse’s sole use and enjoyment of the residence.
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. Again, this is one of many situations that arise when going through a divorce where at least one spouse is a service member.
A service member with children should also recognize the impact of a primary physical custody order on their BAH. If the service member is awarded primary physical custody, they will get to claim the child as a dependent.
However, this means that if the non-service member spouse is awarded primary physical custody, the service member does not get to claim the child as a dependent for BAH purposes. As stated throughout, one of the factors used to compute the BAH amount is whether the service member has or does not have dependents, so whether the service member spouse gets to claim the child will likely impact their BAH eligibility and amount.
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.
It is important to understand that the situations discussed herein are some of many potential circumstances that you as the service member or non-service member spouse may find yourself in. Given the impact of a separation, divorce, and subsequent court orders on BAH, it is beneficial to retain counsel that is knowledgeable in this area to properly advise you.
