Army regulations for Bah

Who in the Army states that? I am not an expert on BAH but never heard that in my 35 years. I quickly looked at the AR and defense manual and see nothing. I found the following on DOD BAH website 35. I am divorced with children, what is my BAH allowance? It depends on whether or not you have legal and physical custody of your children, pay child support, and/or live in single-type Gov’t quarters. If you have legal and physical custody of your children, then you are authorized BAH at the with-dependent rate if not assigned adequate family-type Gov’t quarters. If your former spouse has custody and you are paying adequate child support (at least in an amount of your BAH-DIFF rate) you are authorized BAH at the with-dependent rate if not in Gov’t quarters or BAH-DIFF if assigned single-type Gov’t quarters. This should answer your question. Changing it to 51% is not going to change anything because you have physical custody.

My suspicion is that your ex is telling you the Army says this, in order to obtain custody. I have read the AR and I see nothing in it that says he has to have 51% custody in order to get BAH. You need to meet with a local family law attorney with experience in military divorces. There are several in Killeen.

If the “Army” is stating that, get it in writing and hand it to your family law attorney in Texas. I doubt this because a Soldier is not going to get BAH and housing. If you have physical custody of your son, then your husband can have either (1) full BAH with Dependents rate IF his court ordered child support is more than the BAH DIFF rate (see 3rd page of the military pay chart; Google “military pay chart DFAS” to view it) or (2) the BAH DIFF amount IF he is living in government quarters. This 51% stuff is not in the applicable regulation. The regulation is a Department of Defense Financial Management regulation (also called a DoD FMR). In this case it is found on line at http://comptroller.defense.gov/Portals/45/documents/fmr/archive/07aarch/07a_26a.pdf. In subsection 260406. Support of Dependent-General, it says in section D.1, that “ When a member (HIM) is divorced from a nonmember (THIS IS YOU), and they share joint legal custody of a child, and the ex-spouse (YOU again) is awarded primary physical custody, then the member is considered a noncustodial parent for the purpose of entitlement to BAH. If the member’s court-ordered child support is less than the applicable BAH-DIFF rate, and the member is not residing in, or assigned to, government quarters, the member is entitled only to BAH at the without dependents rate. However, members who pay additional support to the ex-spouse having primary custody of the child(ren) so that the total child support provided is equal to or more than the BAH-DIFF rate, and who are not assigned to government quarters, are entitled to BAH at the without dependents rate and BAH-DIFF.” Nowhere in the regulation does it address 51% or more than half of the year. The controlling factor is what the state court divorce and custody order says about who is the “primary physical custodian.” Giving him 51% as you say, would be helpful under IRS code for income tax dependency status, but for BAH, the order would have to be changed to say that you each have shared physical custody but his home is the home where the child resides primarily” or more simply, “he is the primary physical custodian.” I hope this was helpful for you.

1. Agree with the answers about anything in the regulation.

I have had a few clients with active military spouses and they have been told that the active military parent must have at least 50% custody to get BAH for the child but I would call his command or JAG in your area and make sure you are getting the most up to date information.