Reprinted with permission from the ABA Section of Family Law eNewsletter, September 2017. © 2017 American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Active duty military service members, as part of their compensation, often receive a monthly stipend for both housing and food. This monthly stipend consists of a Basic Allowance for Housing payment (BAH) and a Basic Allowance for Subsistence payment (BAS). BAH will be provided in the event that a service member is not being furnished with government provided housing. If government furnished housing is available, a service member may not receive a BAH payment or will received a reduced BAH payment. BAS is typically provided regardless of the availability of government provided meals.
Basic Allowance for Housing (BAH)
The Department of Defense states that BAH is an allowance to offset the cost of housing when you do not receive government-provided housing. A service member’s BAH will depend upon their location, pay grade and whether they have dependents. BAH rates are calculated by reviewing the cost of rental properties in a locality. As a result, BAH rates in an area with a high-cost of living (housing) will be significantly higher than the BAH rates in a lower cost area. BAH rates are published on the Defense Travel Management Office web page: https://www.defensetravel.dod.mil/site/bah.cfmS. It is also important to realize that there are several different types of BAH and the payments that a service member is entitled to can change based on various eligibility criteria.
Basic Allowance for Subsistence (BAS)
The Department of Defense states that BAS is meant to offset costs for a service member's meals. This allowance is only intended to offset the cost of the service member’s meals, not the cost of meals for the service member’s family. Because BAS is intended to provide meals for the service member, its level is linked to the price of food. As a result, the payments a service member receives for BAS are adjusted each year to correlate with the increase of the price of food as measured by the USDA food cost index.
BAH and BAS When Calculating Child Support
The Court will typically look to the entirety of the service member’s income when calculating child support, and in most circumstances this will result in the inclusion of a service member’s BAH and BAS income in their overall income for purposes of calculating child support. Note that these allowance payments are received tax free, and this tax status must also be reflected when preparing the child support calculations. Several arguments have been put forward in an effort to exempt BAH and BAS allowances from inclusion in the calculation of child support; however, various Courts have consistently found that including BAH and BAS income in child support calculations is appropriate and that the parent receiving said payments has an obligation to utilize that income for the support of their children.
As the states traditionally retain jurisdiction over family law matters, including matters of child support, it is important to review and understand the applicable laws in your jurisdiction as they relate to a service member’s support obligations. This article is intended to provide a general assessment as to how BAH and BAS payments are treated in typical scenarios, the facts and circumstances of each individual situation, and the corresponding laws in that jurisdiction, will ultimately dictate the final award as to child support. As with all family law matters where a military service member is involved, it is important to obtain the services and counsel of a military family law attorney.