BAH and BAS in California Child Support: How Military Allowances Are Treated

Yes. California counts both the military housing allowance (BAH) and the food allowance (BAS) as income when it calculates child support. The Family Code expressly lists military allowances for housing and food as part of a parent's gross income. This applies even though neither allowance is subject to federal income tax.

Most people facing a child support case in a military family arrive with a pay statement full of line items and one pressing question: which of these numbers will the court actually use? A service member in San Diego County may worry that tax-free allowances will be counted as though they were taxed wages. A military spouse may wonder whether the other parent's housing money belongs in the calculation at all. Both are trying to see, before a hearing, what income figure the Superior Court of California, County of San Diego will work from and why.

This article walks through what BAH and BAS are under federal law, how California's guideline formula treats them, and what tends to change the picture after a divorce, a deployment or a move to a new duty station.

What BAH and BAS Are — and Why the Distinction Matters

BAH, the Basic Allowance for Housing, is a monthly federal allowance for housing. Under 37 U.S.C. § 403(a)(1), a member of a uniformed service who is entitled to basic pay is generally entitled to BAH. The amount "will vary according to the pay grade in which the member is assigned or distributed for basic pay purposes, the dependency status of the member, and the geographic location of the member." For areas inside the United States, rates are based on the cost of adequate housing for civilians with comparable income levels in the same area (37 U.S.C. § 403(b)). That geographic piece matters in a high-cost region like San Diego.

BAS, the Basic Allowance for Subsistence, is a monthly federal allowance tied to the cost of food. Under 37 U.S.C. § 402(a), a member entitled to basic pay is generally entitled to BAS, although an enlisted member is not entitled to it during basic training. Its rate is adjusted each year by reference to a measure of food costs (37 U.S.C. § 402(b)).

Neither allowance is "wages" in the ordinary sense. Federal tax law excludes certain allowances received because of military service from gross income as "qualified military benefits" (26 U.S.C. § 134), and BAH and BAS are generally not subject to federal income tax.

Here is the distinction that confuses many military parents. The federal tax treatment answers a tax question. It does not answer a California child support question. California family law decides on its own terms what counts as a parent's income for support, and as the next section explains, it answers that question directly.

How California Defines 'Income' for Child Support Purposes

Family Code section 4058(a) defines a parent's annual gross income as "income from whatever source derived," except as the statute itself specifies, and says it "includes, but is not limited to" a long list of items. That list, in section 4058(a)(1), names commissions, salaries, wages, bonuses, pensions, disability insurance benefits, severance pay and many other sources. It also names, in plain words, "military allowances for housing and food."

That phrase is the reason BAH and BAS count. A court in San Diego County does not have to reason by analogy or decide whether a housing allowance resembles wages. The Legislature put military housing and food allowances in the definition. Both allowances also replace money a parent would otherwise spend on rent and groceries, which is why the law treats them as part of what is available to support a child.

Section 4058 reaches further than the allowances. Section 4058(a)(3) lets the court, in its discretion, count employee benefits, taking into account the benefit to the employee, any corresponding reduction in living expenses and other relevant facts. And under section 4058(b), when a parent's income is unknown, the court must consider that parent's earning capacity; when income is known, it may consider earning capacity instead, consistent with the children's best interests.

For a service member, then, the starting figure is usually broader than base pay alone. It generally combines basic pay, BAH, BAS and any other listed income. A separate question, how VA disability compensation is treated, has its own rules and is covered in the article on VA disability pay in divorce.

California's Guideline Formula and Where Military Allowances Fit

Family Code section 4055 sets the statewide uniform guideline formula: CS = K[HN − (H%)(TN)]. In plain terms, the formula looks at the higher earner's net monthly disposable income (HN), both parents' combined net monthly disposable income (TN), and the approximate percentage of time the higher earner has or will have primary physical responsibility for the children (H%). The factor K is the share of combined income allocated to child support, which section 4055(b)(3) sets on a sliding scale tied to total income and timeshare. For more than one child, the result is multiplied by a factor the statute lists.

The amount the formula produces "is presumed to be the correct amount of child support to be ordered" (Family Code section 4057(a)). That presumption can be rebutted only by admissible evidence that applying the formula would be unjust or inappropriate in the particular case, because one or more factors in section 4057(b) applies. Those factors include, among others, a stipulation to a different amount, an extraordinarily high income where the formula would exceed the children's needs, a party not contributing to the children's needs at a level matching that party's custodial time, and special circumstances in the case. Behind the guideline sits Family Code section 4050, which states the Legislature's intent to keep California in compliance with federal regulations for child support guidelines.

The path from paycheck to formula runs in two steps:

1. Gross income under section 4058. BAH and BAS are included here, alongside basic pay and other listed income.
2. Net disposable income under section 4059. The court subtracts the actual amounts attributable to listed deductions, including state and federal income tax actually payable, FICA contributions, mandatory union dues and retirement contributions required as a condition of employment, health insurance and health plan premiums for the parent and children the parent must support, state disability insurance premiums, and child or spousal support actually being paid under a court order for someone not covered by the new order.

The tax deduction in section 4059(a) is limited to taxes "actually payable" after all available exclusions. Because BAH and BAS are generally not subject to federal income tax, there is no federal income tax on those allowances to deduct. The allowances therefore pass through into net disposable income largely intact. That often surprises a service member who has compared base pay with a civilian salary: a dollar of tax-free allowance can carry more weight in the formula than a dollar of taxed pay.

Timeshare is the other major variable. H% reflects the actual or expected parenting time arrangement, and military life can shift it. A deployment, a temporary duty assignment or a move can change how much time each parent has with the children. How custody itself is decided is a separate subject, covered in the article on military child custody.

What Happens to BAH When a Service Member Divorces or Separates

BAH eligibility is set by federal law and military rules, not by California family law. Under 37 U.S.C. § 403(a), the rate depends partly on the member's dependency status, and a member is not entitled to BAH as a member with dependents unless the member certifies the status of each dependent to the Secretary concerned. A divorce can change who counts as a dependent. Whether a service member keeps a with-dependents rate after divorce, for example because a child remains a dependent, is decided within the military system under federal rules.

The question many readers search, how fast BAH changes after a divorce, does not have a California answer. The timing is a military administrative matter, and this article does not state a timeline for it. What California law controls is what happens to the support order once the allowance does change.

That brings in Family Code section 3651. Under section 3651(a), a support order generally "may be modified or terminated at any time as the court determines to be necessary," subject to exceptions the statute lists. One of those exceptions matters a great deal: under section 3651(c)(1), a support order generally may not be modified as to any amount that accrued before the date the notice of motion or order to show cause to modify was filed. A change in BAH does not adjust an existing order on its own. Until a request to modify is filed, the existing order generally continues to accrue as written.

For a military family in San Diego County, a request to modify child support is filed in the Superior Court of California, County of San Diego. When the court recalculates support, it applies the same section 4058 definition of income and the same section 4055 formula described above, using the evidence of income presented.

Divorce and separation raise many questions beyond child support for a service member, and the overview of active duty military divorce covers the broader picture.

Deployment, PCS Moves, and Modifying a Child Support Order

A PCS, or Permanent Change of Station, is a military order requiring a service member to relocate to a new duty station. Deployment and PCS orders affect child support in two main ways. They can change income, including BAH, which depends partly on geographic location under 37 U.S.C. § 403(a). They can also change the timeshare percentage that drives the formula in Family Code section 4055. For a parent in San Diego facing orders elsewhere, both pieces of the calculation may move at once.

California has a deployment-specific procedure. Under Family Code section 3651(c)(2), if a party to a support order is activated to United States military duty or National Guard service and deployed out of state, the servicemember may file and serve a notice of activation of military service and request to modify the support order, instead of a notice of motion or order to show cause. The servicemember indicates the date of deployment, and if possible the court schedules the hearing before that date. If the court cannot hear the matter before deployment and the servicemember meets the conditions of the Servicemembers Civil Relief Act, the court must grant a stay of proceedings consistent with that Act's timelines.

The Servicemembers Civil Relief Act (SCRA) is a federal law that protects service members in civil cases. Two of its protections often come up in support cases:

• Stay of proceedings. Under 50 U.S.C. § 3932, which applies to any civil action or proceeding, including any child custody proceeding, a servicemember who is in military service (or within 90 days after release) and has received notice may apply for a stay. On a proper application, the court must stay the action for a period of not less than 90 days. The application must include a letter or other communication explaining how current military duty materially affects the servicemember's ability to appear, with a date of availability, and a letter from the commanding officer stating that current duty prevents appearance and military leave is not authorized. Applying for a stay is not an appearance for jurisdictional purposes and does not waive defenses.
• Default judgment protection. Under 50 U.S.C. § 3931, which applies where the defendant does not make an appearance, before entering judgment for the plaintiff, the court must require an affidavit stating whether the defendant is in military service. If it appears the defendant is in military service, the court may not enter judgment until it appoints an attorney to represent the defendant.

These protections affect the timing and fairness of a hearing. They do not erase a support obligation. On the enforcement side, federal law requires an active-duty member to make allotments from pay and allowances once support under a qualifying order is delinquent in an amount equal to two months' support or more (42 U.S.C. § 665(a)(1)).

California's Department of Child Support Services (DCSS) is the state agency that provides child support services, and its website, childsupport.ca.gov, explains how a parent can open a case. The California courts' self-help guide to child support explains court procedures. How a PCS move affects custody itself is a separate question, addressed in the articles on a PCS move and custody and on deployment and custody.

If You'd Like to Talk Through How the Allowances Fit Your Order

Child support in a military family turns on details a standard pay comparison misses: which allowances are on the leave and earnings statement, how the dependency status behind BAH may change after separation, what the realistic timeshare looks like around deployments or PCS orders, and whether an existing order already reflects any of it. A consultation is a place to raise those questions. Military Family Law Advocates practices California family law only, so questions about a support case in another state's courts belong with a lawyer licensed there.

To talk with the firm about BAH, BAS and support, call Military Family Law Advocates at 888-771-0460 for a confidential consultation.