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Divorce, Child Support, and VA Disability Payments
Julie Glover Adam Luck Veterans Law Attorneys
Veterans in the midst of a divorce often question how their VA disability compensation will be
treated in the process. They are often surprised to find out that their VA disability benefits will likely
be considered determining how much child support he or she should pay. Although some individual states may have exempted VA disability benefits from consideration in child support, the Supreme
Court in Rose v. Rose (1987) found that disability payments could be considered when determining child support obligations. The Court noted that “children may rightfully expect to derive support
from a portion of their veteran parent’s disability benefits.” This means that federal law does not
prevent a state court from ordering a veteran to pay child support in an amount that necessarily
would require the veteran to use VA disability benefits to satisfy the obligation.
Contact us for more information about your case...the consultation is free!
From the Desk of Drew Early
Veterans Law Attorney
Retired and divorcing? Believe in 5301 protection?
Hey Jim, This is the latest case (and it’s a Supreme Court case) about VA benefits and
how they are considered when a military retiree is in a divorce situation. This will serve to further
clarify (or cloud, depending on perspective) an already contentious area for some veterans.
Howell v. Howell, Docket #15-1031 . The Court unanimously held that a “state court may not order
a veteran to indemnify a divorced spouse’s portion of the veteran’s retirement pay caused by
the veteran’s waiver of retirement pay to receive service-related disability benefits.”
Although the Uniformed Services Former Spouses’ Protection Act allows a state to treat a
military veteran’s retirement pay as community property, it “exempts from this grant of permission
any amount that the Government deducts ‘as a result of a waiver’ that the veteran must
make ‘in order to receive ‘disability benefits.’” The Court therefore held in Mansell v. Mansell,
490 U.S. 581 (1989), that if a veteran waived a portion of his retirement pay by electing to receive
disability pay and later gets divorced, a state court may not treat the waived retirement pay
as community property. The Court held here that the same result obtains when the
veteran makes that waiver after his divorce — a divorce in which he
agreed to pay his former spouse 50% of his military retirement pay each month.
/s/ Drew Early, Esq.
Jim Strickland is a nationally known advocate for veterans and a member of the Stateside Legal Advisory Board.
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The apportionment process - how to apply
VA Form 21-0788 - Veterans Affairs - INFORMATION
REGARDING APPORTIONMENT OF BENEFICIARY'S AWARD
Using certified mail, send the form to:
Department of Veterans Affairs
Claims Intake Center
PO BOX 4444
JANESVILLE, WI 53547- 4444
You should also fax a copy to:
Toll Free Fax: 844-531-7818
Wait patiently for VA to reply.
The Actual Legal Analysis as to 38 USC 5301 and Alimony
Willick Law Group
3591 East Bonanza Road
Las Vegas, NV 89110
(702) 438-4100
Rose v. Rose - 481 U.S. 619 (1987)
U.S. Supreme Court
Rose v. Rose, 481 U.S. 619 (1987)
Rose v. RoseNo. 85-1206
Argued March 4, 1987
Decided May 18, 1987 481 U.S. 619
Appellant, a totally disabled veteran whose main source of income is federal veterans'
benefits, was held in contempt by the state trial court for failure to pay child support, the
amount of which had been fixed by the court after considering appellant's benefits
to be income under a Tennessee statute. The State Court of Appeals affirmed,
rejecting appellant's contention that the Veterans' Administration (VA) has
exclusive jurisdiction to specify payments of child support from the disability
benefits it provides. The court determined that Congress intended disability
benefits to support the beneficiary and his dependents, and held that the trial court's
order directing appellant to pay a portion of those benefits as child support
or be held in contempt did not undermine a substantial federal interest.
Garnishment & Apportionment are very serious matters.
Your VA disability payment can't be garnished under most circumstances.
It can be "apportioned".The dependent who is owed money by the order of a
family court is allowed to seek apportionment through the VA.
The dependent must complete the VBA Form 21-0788.
Do not ever try to hide or disguise income.
Your credibility counts for a lot in a family court. If the judge discovers that you aren't
reporting all of your income, including your VA disability income, that won't go well for you.
Don't argue the law with the judge. The family court judge has heard it all.
The family court is run by the state you're in.
They follow the law that is in effect in your state. Most states require that a financial
statement be completed for the court to review.
Each state says that "income" must be accurately listed so that the court
understands the financial status of each party.
How "income" is defined may vary from state to state. Most use language like
"total income from all sources" or something similar.
Look for the law in your state by clicking right here.
In most of these on-line references you'll see that the state lists "disability income"
or similar language. The judge wants to know how much your overall, total income is.
The question we're asked on an near daily basisis "Do I have to pay child support or
alimony with my VA disability money? I'm told that the law protects me from that. I can barely
manage now with the disabled veterans benefits I receive." The answer is almost always,
"Yes, your VA disability money will be used by the family court to determine your obligation to
pay child support or alimony." It is viewed as part of your total income and the law allows
it to be used in every state. The court can not garnish the money from the VA. But once you
have it in your checking account, the court can order you to pay the amount they have determined
to be your obligation. If you don't, you may be held in contempt of court and you may go to jail.
Is this fair? I can't answer that. I don't usually try to address whether or not it's a fair system.
I just report to you the reality of what's happening in our veterans world and this is the reality
we face. If you don't pay, the obligee (the custodial parent or the spouse owed alimony) may
ask VA to apportion your VA disability payment. While this isn't called garnishment, it works
the same way. If you are behind on payments, VA will determine what they believe you can
afford and send it to the obligee. Once apportionment starts, you will face a steep hill in
challenging it to get away from it. Your only real option is in the family court.
You have the right (this varies state to state) to ask the family court judge to lower your obligation.
Disabled Veterans Divorce 5301
Child Support & Alimony Apportionment
Send Your Documents,
Forms & Evidence here...
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Department of Veterans Affairs
Claims Intake Center
PO BOX 4444
JANESVILLE, WI 53547- 4444
Toll Free Fax: 844-531-7818
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Military Service Records, Awards, and Unit
Histories: A Guide to Locating Sources
This guide provides information on locating
military unit histories and individual service
records of discharged, retired, and deceased
military personnel. It also provides information
on locating and replacing military awards and medals. Included is contact information for
military history centers, websites for additional sources of research, and a bibliography of other publications, including related CRS reports.
VBA Derivative Benefits Eligibility
The VA Benefit Eligibility Matrix
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eligible for that are based on a favorable decision for
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These are known as derivatives.
Veterans notified of potential VA eBenefits breach
The issue has to do with the VA's eBenefits where some of the veterans' information has
reportedly been compromised.
VA Benefit Identifier
National Veterans Legal Services Program (NVLSP) is pleased to present the first of its kind app for use by military veterans and their advocates, available
for download through the NVLSP website,
Apple App Store, or Google Play Store. This application helps veterans, with or without the assistance of a veteran’s advocate, determine specific VA benefits to which they are likely entitled.
You have the right to appeal any benefits decision made by the Veterans Benefits Administration (VBA). The VA appeals process is set in law and is different from other judicial appeals processes.