San Diego Military Divorce Lawyers

Legal Considerations in Military Divorce Cases

Divorce can be a complicated process, but when one or both spouses are members of the U.S. military, it introduces a unique set of challenges. Given San Diego's large military population, Andrew J. Botros, APC is experienced in handling the issues specific to service members. 

Our attorneys include four Certified Family Law Specialists who bring every client the highest professional expertise and skill. Our firm is backed by extensive experience resolving cases through negotiation, mediation, and litigation. 

Call (858) 422-1377 or complete our online contact form to book a confidential case review with a San Diego military divorce attorney. We offer phone, office, and convenient virtual consultations. 

BAH & BAS Income for the Calculation of Child Support

A common question in military divorce cases is whether Basic Allowance for Housing (BAH) and Basic Allowance for Sustenance (BAS) are considered income for calculating child and/or spousal support. 

• The argument against: Military spouses have argued that since BAH and BAS are not considered income for federal tax purposes, they should not be included in support calculations.
• The argument for: Non-military spouses have countered that these allowances reduce a service member's living expenses and should be treated as income.

The California Court of Appeals settled this debate in 2010. The court affirmed a trial court's ruling: "If it looks like income, it is income no matter how it is paid to you." This decision established that BAH and BAS are considered income available for support in California family law cases.

The Income and Expense Declaration (Form FL-150), which parties must complete and exchange in all divorce cases, includes a specific line for military allowances. Failure to disclose BAH or BAS income can be considered a breach of fiduciary duty, and courts in California may impose sanctions even if no harm resulted from the non-disclosure.

Military Retirement Division in Divorce

Another significant issue in military divorce is the division of retirement benefits. Unlike many retirement plans, military retirement does not have a set value that can be easily divided, making its division complex.

To address this, Congress passed the Uniformed Services Former Spouses’ Protection Act (USFSPA), which allows state courts, including those in California, to divide military retirement benefits in divorce, legal separation, or annulment proceedings.

However, a state court must have jurisdiction to issue orders regarding military retirement. Jurisdiction is established if:

• The military spouse consents to the court's jurisdiction.
• The military spouse is a legal resident of the state.

Being stationed in a state does not automatically establish residency. Consent to jurisdiction can be implied through active participation in the divorce proceedings, such as filing the initial petition or a response. As a military spouse, if you are considering the action of challenging jurisdiction, consult an attorney at Andrew J. Botros, APC for guidance.

Direct Payment of Military Retirement

The USFSPA also governs the direct payment of a portion of a service member's retirement to a former spouse. The Defense Finance and Accounting Service (DFAS) will only issue payments directly to a non-military former spouse if the marriage and the creditable military service overlapped for a minimum of 10 years.

If the "10/10 Rule" is not met, the non-military spouse must collect their portion of the retirement benefit directly from the military spouse. If the service member is uncooperative, the former spouse may need to seek court intervention to enforce payment.

How Divorce Affects BAH

Divorce can impact a service member's BAH in several ways. For example, a service member who previously received BAH to provide housing for a spouse and children may be reassigned to single-type government quarters and lose their eligibility for the allowance.

However, a service member may still be entitled to BAH-differential (BAH-DIFF) if they live in single-type government quarters but must pay child support. BAH-DIFF is a housing allowance paid solely to cover child support payments. Eligibility for BAH-DIFF depends on whether the monthly child support obligation exceeds the BAH-DIFF rate.