Military Base Housing in a Divorce

With privatization, military housing has changed a lot since the 1990s. But the fundamentals are still the same - the military will provide its members with housing, or a housing allowance (BAH, or Basic Allowance for Housing) in addition to basic pay and other allowances.

Military housing is either in the barracks or in family housing. Junior enlisted members without family members live in barracks, while members living with family have family housing, or are entitled to BAH.

Military Housing vs BAH

A member may be provided military housing, or BAH, but with limited exceptions, not both. 37 U.S. Code § 403(e)(1). The only exception is when a member with dependents is assigned to government quarters where the family members are not authorized to live, the member may receive both the housing (for herself), and BAH (to pay for the family’s housing).

The amount of BAH depends upon the member’s pay grade, duty station, and whether the member has dependents. For more information, see the Understanding Military Pay & the LES in a Divorce article.

What does this mean for a divorce? Every military member will either be receiving military housing, or BAH, but rarely both. So if you see an LES (a Leave and Earnings Statement is the equivalent of a military pay stub) without BAH, you can assume that the member is receiving free housing - this will be important for purposes of determining maintenance & child support, discussed below.

Spouse Living in Military Housing While Divorce Pending

Can a spouse live in military base housing while going through a divorce with a military member? Yes, but with a caveat.

Though a military spouse remains legally a spouse until until a civilian court has issued a decree of dissolution, that does not mean the spouse automatically can stay in military housing. Just as civilian spouses often cannot live with each other, requiring one to move out (or the judge to order that one spouse temporarily live in the family residence), so too may it be necessary for a military member or spouse to move out of military housing.

A married member is entitled to military housing, so until the divorce is final, the family will not lose the housing. But though the military member is the “sponsor”, he has no greater right to live in the family housing than the spouse.

In the Army, if the spouses cannot abide living together, the Staff Judge Advocate (SJA) makes the determination who remains in housing, the member or the spouse, until such time that a decree of dissolution of marriage has entered:

“Where a marriage is in difficulty due to marital discord, disharmony, and/or break-up, there is the possibility that, given time, the Family can mend itself. If reunification is not possible, the military spouse remains a spouse until the marriage is legally dissolved. Where a Soldier is married to a service member, the senior Soldier is considered the sponsor. In cases where a sponsor and spouse are unwilling, or otherwise unable, to cohabitate due to marital discord, the garrison commander, in consultation with the sponsor and the spouse and with the Staff Judge Advocate (SJA), will make a determination as to who, if either party of the marriage, will remain in housing. Such determination should be made in consideration of the involvement of other dependent Family members of the marriage. This determination will remain in effect until resolution of the marital situation (that is, reunification, legal separation, or divorce) or until the sponsor’s PCS to a location beyond a 1–hour commuting distance or separation from the Service.”

AR 420-1, Army Facilities Management, Para. 3-18(b)(2)(i)

Former Spouse & Military Housing After Divorce

Can a former military spouse live in base housing after divorce? No. Upon a decree of divorce entering, the former spouse is no longer a military dependent, and therefore not eligible to live in government housing.

The specific requirements vary by branch of service, but the former spouse will typically have 30 days to depart the military housing:

• Army. Notice is sent after decree of dissolution of marriage, former spouse then has 30 days to depart. AR 420-1, Army Facilities Management, para. 3-18(a)(3).
• Air Force. When the member no longer lives with the family, the family has 30 days to depart the residence. AFI32-6001_AFGM2018-01, Family Housing Management, Para. 6.3.5
• Navy: Loss of eligibility upon divorce, have 30 days to request extension if meet criteria. CNICINST 11103.5, para. 3.j.

Paying Alimony or Child Support to Spouse in Military Housing

Is a civilian spouse married to a service member entitled to spousal support while living in government housing? Generally yes, but the value of the housing will usually count as a credit against the spousal support obligation.

Each of the branches has a regulation requiring payment of temporary family support while the spouse and service member are separated, at least until a civilian court issues a specific order for child support and spousal support.

In the Army, for example, if the civilian spouse lives in military housing, then Army Regulation 608-99, Family Support, Child Custody & Paternity, para. 2.6(d)(2), provides: “While the soldier’s family members are residing in Government family housing, the soldier is not required to provide additional financial support.” Note that this only applies to the temporary family support required by AR 608-99, not to any support which may be ordered by a civilian court.

When a court considers the need for child support and maintenance, the spouse living in military housing can’t “have her cake and eat it too,” What that means is that if the spouse is already living in free housing through the military, the court will consider the value of this housing against the maintenance or child support obligation.

Military Member in Base Housing & Payment of Alimony or Support

Just as the value of the military housing will count towards a civilian spouse living in the base housing, so too will that base housing count as income towards the military member when determining his alimony or child support obligation.

While this was much more of a factor before the privatization of military housing, when government quarters were provided free of charge in lieu of BAH, this principle still has applicability for those few members living in non-privatized housing, or those living overseas.

For a more in-depth discussion, and the specific laws applicable to treatment of military housing allowances in a divorce, see the article Understanding Military Pay & the LES in a Divorce.

Base Military Housing & Domestic Violence

If either a member or spouse living in military housing has committed domestic violence against the other, the military will separate the warring spouses to protect the victim, even without waiting for a conviction. This means moving the perpetrator out.

DoD 4165.63-M, Housing Management, para. 2(h)(5) provides:

“Upon receiving a report of domestic violence, a commander shall secure safe housing for the alleged victim, as needed, within a reasonable geographic proximity to the installation. The preference is to remove the alleged offender from the home when the parties must be separated to safeguard the victim. The alleged offender shall be directed to alternative housing as needed.”

Military Barracks in a Divorce

Does a barracks room count as free housing for purposes of spousal and child support? Yes, but perhaps not quite at the full BAH level. Though military housing is an “in-kind” benefit that will be added to the member’s income for support purposes, our firm has had success arguing that a barracks room (or even a quonset hut in some locations) is far from real housing that warrants adding the full BAH to the military member’s income.