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VETERANS' ADVOCATE JIM STRICKLAND
EXPLODES THE
"5301" MYTH -- "State court jurisdiction is not
preempted by
any federal statute ... Courts can establish
child support
orders even if the non-custodial parent received
veteran's
disability benefits as his sole means of
support."
Jim Strickland -- Veterans' Advocate
Veterans' Advocate Jim Strickland provides
regular columns for VA Watchdog dot Org.
If you would like to contact Jim about his
columns, you can email him here...
The archive of Jim's articles
is here...
To find an answer to a specific VA benefits
question, use the VA Watchdog search engine...
click here...
And, be sure to use Jim's: A Military
Veterans Guide To Disability Compensation and Pension Benefits -- A
Compendium of Resources and Knowledge For The Disabled Veteran --
click here...
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-------------------------
by Jim Strickland
Divorce is messy. Lawyers who practice family law
see some of the ugliest confrontations between people possible. There's no
way to predict what one spouse will do or say to extract revenge on the
other.
That it will get down and dirty is a given. When children and money are
involved, it's likely to become nastier by a country mile.
The veteran wrote to me about his child support obligation and how it will
be seen by the family court system in the calculation of his child support
obligation.
"Jim: I am currently service connected for multiple medical condition
with a combined rating of 80%. I am drawing $1547 per month for self and
spouse.
I retired (from work) 01/02/09 and had my annual income cut by
approximately 32%. Prior to my retirement, I was paying child support
for 1 kid in the amount of $826.15. Based on my new retirement income, I
started working with the State Bureau of Child Support Enforcement to
have my child support recalculated based on my retired pay. Before the
they could help me, the mother had me served with court papers relevant
to the modification of an existing 2002 Child Support Order. During a
court hearing, the attorney for the child's mother raised the issue that
my VA Compensation Monthly Check of $1547 was not included in
calculating the new child support monthly payment.
My question is 'Can a State Family Court use my VA compensation as
income to calculate a new monthly Child Support payment?' I have read
USC Title 38 concerning VA compensation and it appears to me that my VA
compensation can not be attached for Child Support. Do you have any
information on VA compensation being used as income to calculate Child
Support payment amounts? I really need help with this matter ASAP. Thank
You."
When he refers to "USC Title 38 concerning VA compensation" I know he's
speaking of Title 38, Part IV, Chapter 53 § 5301, Nonassignability and
exempt status of benefits. I've heard a lot about this "5301 rule" over
the last two or three years.
This is a complex and lengthy piece of legislation, you can read it for
yourself here
http://www.law.cornell.edu
/uscode/html/uscode38/usc_sec_38_00005301----000-.html
We'll refer to it as "5301" for the sake of brevity.
In plain English language, 5301 seems to tell us that there are almost no
circumstances that anyone can collect a veterans disability payment for
any debt he might owe. It does say that any federal debt may be exempted
(IRS, school loans, etc.) but that all other creditors are forbidden to
demand any amount of the disability compensation money. This applies
whether before or after it is received by the veteran. In other words, it
can't be garnished like a paycheck. Once it's in the veterans hands it
can't be touched so long as it's identified as money from a Department of
Veterans Affairs (DVA) disability compensation payment.
Before we travel farther down the path of 5301, we should talk briefly
about how federal laws are made. In a nutshell, a bill is introduced by a
Congressional Representative that proposes a law. It passes before
committees in the House and in the Senate and eventually finds its way to
the desk of the President. Published in the Federal Register
http://www.gpoaccess.gov/fr/ , it then becomes law.
As it becomes law, the courts then apply it to everyday circumstances of
the citizens they serve. The judge presiding in the courtroom must
carefully read the law and then interpret what he believes to be the
intent of Congress when the law was formulated. If you've followed legal
matters you've read of the expressions of "the letter of the law" as
opposed to "the intent of the law".
click for more information -- a disabled veteran
owned business
To try to interpret law only by using the precise language or letter of
the law is a mistake that far too many lay readers will make. Lawyers and
judges understand that while the literal interpretation is important, the
intent of the body of lawmakers is even more important.
In the examination of 5301 we must try to determine what the Congress
intended at the moments the law was proposed and passed. Once a law is
passed, the members of Congress will change, society at large will change
and even the office of the president may see a new shift to the left or
right. The law that was passed is still there, unchanged for years to
come.
Language is a poor way to communicate. Words don't have the precision of
numbers. If you add 2 + 2 it's going to equal 4 this year and on into the
next century. Knowing that words have subtleties that can't be seen as
clearly as a mathematical equation, enforcers of our laws must look deep
between the lines to determine the intent of a particular statute.
I asked a learned friend, a lawyer who I trust to know these things, for
his opinion. His reply was brief and to the point; "As I expected, there
are a number of cases already on this point. In sum, the courts are
consistent in finding that the statute protects veterans from 'creditors'
and related 'process' and 'spouses' using 'marital property laws' are not
'creditors.' Whether you agree with it or not, that is how 5301 is
interpreted."
In an article written by Attorney Zenell Brown
http://www.fa-ir.org/alabama/cs/cs_disability.htm
the author points out that the Supreme Court addressed the issue in Rose
v. Rose 107 S.Ct. 2029 (1987)
http://supreme.justia.com/us/481/619/
Attorney Brown notes that, "The Court held that state courts can establish
child support orders even if the non-custodial parent received veteran's
disability benefits as his sole means of support." He goes on to tell us,
"State court jurisdiction is not preempted by any federal statute."
Importantly, and I believe this is at the heart of the discussion about
the obligations of a parent, Brown says, "It was the Court's position that
Congress intended that these benefits provide for the veteran as well as
his dependents."
 It's
not much of a reach to understand that when Congress enacted this 5301
law, the intent was to protect the veteran and his family from
unscrupulous creditors if and when the veteran were to fall on hard times.
In the eyes of Congress and the courts, the family unit remains just that
even after divorce when children are involved. The veteran's obligations
to the family aren't relieved because of divorce or disability.
The article goes on to say that in some few states there is considerable
controversy about interpretation of the 5301 law and that overall it's,
"ripe for litigation".
In the case of a child support order, arguing the 5301 rule seems to be
moot. While the DVA will not support garnishment or attachment of a
disability compensation payment (arguing that DVA doesn't want to become a
collection agency for the children's and family services divisions of
every state) DVA will easily allow "apportionment" of that same money. For
a custodial parent to apportion a sum of the disability compensation
payment is a simple matter of writing a letter to the Regional Office that
controls the veterans file and providing a copy of an order for child
support and some financial information.
The veteran is then notified of the apportionment request and given the
usual opportunities for appeal. In my experience, VA quickly defaults to
the needs of the child and the custodial parent and begins to assign the
requested amount within a short time.
Once apportionment is established, that amount of money is forwarded
directly to the custodial parent. This path of providing for the family of
the veteran has a unique pitfall of its own that most veterans won't
discover until it's far too late.
When a child support obligation is ordered in a state family court, the
usual standard is that the money is delivered to the state agency of child
support enforcement. Whether the money is to be withheld from paychecks or
mailed in by the obligor, the money must be accounted for by the state
agency responsible. Non-custodial parents are sometimes shocked to
discover that cash given directly to children for special events,
birthdays and the like, aren't counted toward the child support
obligation. If the state doesn't track it officially, it didn't happen.
In the case of the custodial parent who writes to the DVA asking for an
apportionment, if that parent prevails, the DVA sends a check directly to
the parent obligee. That money thus bypasses the state agency and isn't
accounted for. Then later, the state may notify the obligor parent to say
that s/he hasn't met the requirements and enforcement actions will occur
soon.
Once it's discovered that the apportionment money wasn't counted, I know
of no cases where that money has been forgiven and credited to the
obligated parent.
Recent efforts by some veterans groups to require states to reinterpret
the 5301 law fall mostly on deaf ears.
In March of 2009, Iowa House File 170 was excluded from further
consideration by the legislature. The bill would have excluded (per 5301)
veterans disability compensation payments in calculations of the amount of
the court ordered child support or alimony obligation.
By not giving House File 170 further consideration, the Iowa legislature
reinforced the way the family courts are currently enforcing alimony and
child support obligations. The veterans activists movement to revise law
to help them avoid a child support or alimony obligations has backfired
and led to a stronger support of the current decisions.
http://www.desmoinesregister.com/article/2
0090313/NEWS10/903130377/1001/NEWS
(Also DOA was Iowa House File 66, "Veterans organizations wouldn't have to
pay anything for a class A liquor license, regardless of how much liquor
they sell." Connected? Hmmm?)
Most of us who divorce when there are children in the mix want to do what
we can to care for those kids. The great majority of non-custodial parents
work hard to remain in the lives of their kids and to provide the
financial support that the children often desperately need.
It isn't always that way though. The laws of the states have become harsh
and unforgiving for the obligate parents because of the history of those
who will stop at nothing to dodge their responsibilities. Over the last
few years the pendulum has swung far over to the side of stiff
requirements and rigid enforcement of family court orders. Magistrates and
judges have almost no leeway in establishing the amounts of an obligation
as they're only allowed to use the data from a financial report to
establish the numbers of the dollars owed each month.
Even divorcing spouses who want to make their own agreements are often not
allowed to do so. The courts know that in months or years, these sorts of
arrangements have little chance of lasting. Today's family courts are
overcrowded with couples who want to publicly argue the smallest details
down to the nth degree. As the courts are becoming more crowded with
shouting ex-spouses, they're more disinclined to hear it and so they
simply set the orders and then pass it on to the appropriate enforcement
bodies. Some states today will only hear pleas for modification of family
court orders every two years.
The bottom line is that for the foreseeable future, a veteran who has a
child support or alimony order should not depend on the remote possibility
that the 5301 law will offer any relief. Any veteran entering into a
divorce should be represented by an experienced lawyer who will guide the
veteran to a reasonable conclusion and an order than will likely be based
on the payment of a DVA disability compensation amount as income.
The best divorce agreement and subsequent alimony and/or child support
order is one that has been carefully considered long before coming to face
the judge.
Divorce and the financial burden that will come along with having children
will be painful.
Just how painful it will be and how long the hurt lasts is largely up to
you.
-------------------------
posted by Larry Scott
Founder and Editor
VA Watchdog dot Org
-------------------------
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