American soldier standing in field holding up a model house.

Military Housing In A Divorce

One of the valuable benefits a military member receives is housing – either living on post in housing provided by the military, or by living off-post and receiving BAH (Basic Allowance for Housing) to defray the rent or mortgage costs. When a military family living in government housing is separating, the civilian spouse will ultimately have to move out once the divorce is final. For a complete discussion of how a divorce impacts military housing, see the Military Base Housing in a Divorce article in the Military Divorce Guide.

In the olden days, i.e. until the mid 1990s, the military owned the housing, and service members and their families would forego receiving BAH in order to live for free in government housing, with the size and quality varying depending upon the number of dependents and rank of the member.

That changed in 1996 when the military started to privatize on-post housing, and now about 99% of military housing is owned by private contractors, and the military members pay their BAH to the contractor in return for the right to live there. This means that the housing looks a lot more like a traditional lease, and the landlord is a private, for-profit company, rather than the U.S. government.

And the problem with a private landlord is that their desire to maximize profits competes with the goal of providing quality, affordable housing to military members and their families. The result has been a rash of negative publicity over “slum-like” conditions in military family housing, with congressional hearings and lawsuits against contractors.

Has Military Housing Improved?

Since the 2019 Congressional hearings, the Department of Defense has been at work creating the Military Housing Privatization Initiative Tenant Bill of Rights. This document contains plenty of lofty goals which look great as soundbites, including:

  • The right to live in housing which meets health and environmental standards
  • The right to working appliances & fixtures
  • The right to report inadequate housing

And so on. Many of these are what lawyers would call “aspirational goals” – the legal equivalent of a politician’s campaign promise. They have flowery language, but do not actually create articulable standards and rights. While it’s unrealistic to expect improvement overnight (and a year is, relatively speaking, overnight), family members are probably expecting a glide path to real improvements.

Congress has been paying attention, and so far is underwhelmed by the DOD response. Chief among the concerns is that maintenance histories are not disclosable, and the standards lack enforcement mechanisms. That means if a military family’s rights under this document are violated, they have no meaningful recourse.

In a rare demonstration of bipartisanship, the senior Democrat and Republican on the Senate Armed Services Committee issued a joint statement:

“We are glad to see the Department of Defense is taking steps in the right direction to ensure our military families have basic tenant rights and fair treatment by housing companies. Unfortunately, it feels like we are seeing a pattern of moving two steps forward, one step back when it comes to fixing our broken military housing system. The Department’s proposed Bill of Rights does not go far enough to protect our military families.”

And their specific complaint was that the Tenant Bill of Rights mandated by the 2020 NDAA (National Defense Authorization Act) requires some important rights not contained in the DOD document:

  • Tenant access to a home’s maintenance history
  • A formal dispute resolution process
  • The ability to withhold rent if problems are not fixed.

Any lawyer will tell you that without access to the facts, and an enforceable dispute resolution mechanism, this document is pretty toothless.

According to Secretary of Defense Mark Esper, ““Many of the rights set forth by Congress pertain to legal matters that do not lend themselves to unilateral action by the Department…” This indirect reference to contractual rights of landlords is telling. As this article from Reuters indicates, it somewhat confirms that the private companies providing the housing put a stop to this nonsense about military tenants having real rights, even as they pay lip service to the concept.

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