Divorces are governed by state law, but federal law can have a significant impact on the rights of military service members and their spouses in divorce. This is especially true in the area of military benefits, including the Basic Allowance for Housing, or BAH. BAH is a valuable benefit for military families, so you should know how divorce affects your access to it. Here’s a rundown of what you need to know about military divorce and BAH.
What is BAH?
BAH is a financial allowance given to service members on active duty when they are not living in government-provided housing. As the name suggests, it is intended to pay for much of the cost of housing for the service member and their dependents, including the cost of utilities. While BAH typically doesn’t cover the entire cost of housing, it usually covers a significant portion of the expense—around 80%.
The amount of BAH is determined by multiple factors, including the rank of the service member, whether or not they have dependents, the number of dependents, and the location of their posting (specifically, the permanent duty station zip code).
Dependents, for the purpose of this calculation, include a civilian spouse; unmarried children under the age of 21; severely disabled children (regardless of age); and unmarried children up to age 23 who are attending college. A service member who has dependents receives allowance at a BAH-With rate; one who has none receives a BAH-Without rate. As you can imagine, BAH after divorce reflects a change in family structure and living arrangements.
Before we go any further in discussing BAH after divorce, we should point out that BAH is a benefit that is payable to the service member. Unlike some military benefits, BAH is not paid to a former spouse. However, while former spouses do not receive BAH, they may still benefit from BAH received by the service member. BAH received by the service member after a divorce is considered income for the purposes of calculating child support.
Do You Still Get BAH After Divorce Without Dependents?
A service member who has primary or sole physical custody of their children after divorce will continue to receive BAH-With unless they are in government-provided family housing and no longer need an allowance for housing expenses.
Things get a little more complicated if the military service member does not have custody of the children. A service member who is assigned to government-issued quarters after divorce no longer receives BAH, as they no longer need to pay for their housing. However, if the service member is responsible for paying child support, they receive BAH-DIFF.
BAH-DIFF is a payment made to service members in single-type government quarters who pay child support to a non-military parent with primary custody. While a service member in government housing ordinarily would not receive BAH, BAH-DIFF is allocated to the payment of child support; you can think of it as allowing the service member to contribute toward the housing of dependent children who no longer live with him or her.
Be aware that a service member who does not have custody of their children, but who pays child support, will only receive BAH-DIFF if the amount of child support is greater than the BAH-DIFF amount.
Who Gets BAH if Both Divorcing Spouses are Military Service Members?
It’s not uncommon for both spouses in a divorcing couple to be active-duty military service members. How does BAH work after divorce in that case? For divorced military spouses who don’t have children, BAH works as it would for any single service member; if not living in government-issued housing, they would receive BAH at a BAH-Without rate.
If both former spouses are active-duty military and share custody of their children, they may not both receive a housing allowance based on the same dependent at the same time. In other words, each parent is only eligible for BAH-With during the time the dependent child is actually in that parent’s custody.
In situations where both former spouses are active-duty military and one parent has primary custody, the other does not receive BAH-DIFF. That’s because, unlike the situation described above with a non-custodial parent in the military paying child support to a non-military ex-spouse, the children already receive an allowance for their housing through their custodial parent’s BAH-With.
Contact an Attorney Experienced in Military Divorce and BAH Issues
The Basic Allowance for Housing is an important benefit, but it is also a complicated one, especially in a divorce. To ensure that you get the maximum value from BAH after divorce, you should consult with an experienced South Carolina military divorce attorney. To learn more about military divorce and BAH, or other military benefits after divorce, contact Brinkley Law Firm, LLC to schedule a consultation.
