In any military family law case, (i.e. divorce, legitimation, or other custody proceeding) the earnings and allowances that a service member receives for his or her service are important for several reasons. The most obvious is probably that the income of the service member is an essential component in determining child support and spousal support. Part of those earnings that may be included in the service member's income are any allowances paid to the member for a specific need. But, the earnings and allowances for a service member are also critical to understand in a military family law case because the allowances, specifically Basic Allowance for Housing (BAH), which is the primary subject of this article, change depending on the service member's status vis a vis his spouse and children.
For example, we recently had a custody case where the service member / father was stationed in Kansas, and the mother and child resided in Georgia. The service member / father told us he wanted 50/50 custody so that way he could get BAH at the with dependent rate. This is not the first time we have heard this. So, does a 50/50 custody arrangement allow the service member to receive BAH with dependents? If not, how much custody does the service member need to have in order to receive BAH with dependents? In this case, the Father was residing in the barracks on post and did not receive BAH (because he received in kind by receiving government housing). If he is ordered to pay child support, does he then receive BAH with dependents? When do dependents count for BAH?
The purpose of BAH is to offset the cost of housing when government-provided housing is not furnished to the member. Any member that is on active duty for more than thirty (30) days and entitled to base pay is entitled to BAH. However, the amount of BAH is determined by a few factors, largely the member's dependency status, meaning whether they have dependents.
As provided in Chapter 26 of the Department of Defense Financial Management Regulation ("DODFMR"), "the statutory purpose of BAH on behalf of a dependent is to at least partially reimburse members for the expense of providing private quarters for their dependents when government quarters are not furnished, and not to pay BAH on behalf of a dependent as a bonus merely for the technical status of being married or a parent." As a practitioner, you will first need to determine the relationship between the dependent and the member. While a determination of dependency is not required, a determination of the relationship between the member and the dependent is required to receive the BAH-with-dependents rate.
In the case of marriage. According to the DODFMR, "a member's lawful spouse and legitimate, unmarried, minor children are at all times considered dependents for BAH purposes." In any case where the validity of the member's marriage is questioned, the member may request a determination on the marriage's validity from the member's specific military branch. In any case where a minor child is born from an invalid or void marriage, the child is still considered a dependent for BAH purposes.
If two service members are married to each other, and have children together but no other children, then they may elect and agree to which member will receive the BAH on behalf of the adopted child(ren) or child(ren) born of the marriage. If the service member spouses cannot agree, then the senior member will be entitled to BAH with dependents for their children, and the other will receive BAH without dependents. In the case where both spouses are service members and they are both assigned to the same or adjacent bases, only one of the members may receive BAH at the with dependents rate. However, when the spouses are assigned to different locations, "their entitlement to BAH at the with dependents rate should be determined separately, without regard to the general rule that all children and parents of the members are dependents of the same class for the purpose of determining BAH entitlements." What this means is that each member must have physical custody of a dependent for both of them to receive BAH with dependents.
In the event that a service member marries, he or she may receive BAH with dependents not only for his or her new spouse but also any stepchildren that come with the marriage. If a member claims entitlement to BAH with dependents rate on behalf of an adopted child or stepchild, the member must provide proof of parentage, including documents showing the member is the legal parent or that the member is married to the legal parent of the stepchild.
In the event of divorce or legal separation. If both spouses are members and they divorce, specific rules apply in determining the entitlement of BAH on behalf of the children born of the marriage. These rules only apply if neither member is assigned to family-type government quarters. If both Parties agree, the custodial parent is entitled to BAH on behalf of the minor child(ren). If the Parties have more than one child born of the marriage and each member has legal and physical custody of one or more of the children, then each member is entitled to receive the BAH at the with dependents rate. In the familiar case of joint legal custody and the parties exchanging physical custody on an equal basis, then each member is entitled to BAH with-dependents rate during the periods of time that the children are actually in that member's custody. (Note - this only applies when both parents are servicemembers).
In the event that a service member and nonmember spouse enter into a legal separation agreement or are divorced by court decree, if the nonmember spouse receives primary physical custody of the child, then the service member is only eligible for BAH at the without dependent rate. If the amount of support paid to the nonmember ex-spouse is equal to or higher than the BAH-DIFF rate and the member does not reside in government-provided housing, then the member would be entitled to BAH-DIFF in addition to the BAH at the without-dependents-rate. The service member parent may qualify for temporary BAH at the with dependent rate when the child is with that service member parent for the temporary period, but that temporary period must be a continuous period of more than 90 consecutive days.
In the case of legitimation. A service member, who is a legitimated father for a child born out of wedlock, must show a birth certificate with the member name cited as required. If the member does not have custody of the legitimated child, then, just like the noncustodial former spouse addressed above, the servicemember receives only BAH at the without dependent rate, if the service member does not live in government housing. However, he may be entitled to BAH-DIFF in addition if the amount of support he is ordered to pay is more than the BAH-DIFF. Note that if the service member lives in government housing, then he receives neither.
The rules for BAH are complicated and convoluted. Going back to the case that we mentioned at the beginning of this article - we had to explain to our client that because he was not the primary physical custodian and because he resided in government housing, he was not entitled to BAH with dependents. In fact, he was not entitled to any BAH, including BAH-DIFF. This question comes up often, especially in custody cases. The DODFMR, Volume 7A, Chapter 26, is the definitive source on the eligibility for BAH. However, it can be confusing, and may not account for every fact scenario that you might come across. In that instance, each of the services has a mechanism for a service member to submit his or her situation for a determination on eligibility. If you or your client is not sure, then that is the way to go. When it comes to the military, we always advise to ask permission first rather than beg for forgiveness later.
