If children are involved their welfare will be the focus of the family court. In other words, one of you is paying child support. That you’re a veteran with a disability rating is of no matter to the family court. The court will ask you to document your income and your VA disability payments must be included in that.
Yes. Correct. Your VA money is fair game in divorce court. If you hide it, you’re in contempt of court and that can mean weekends in jail. Once child support and/or alimony payments are set, if you fall behind VA may give your disability payment money directly to the obligee.
Apportionment is a VA process similar to wage garnishment and if properly motivated, your VA will give your money to your ex to satisfy your obligations.
If you’ve been told that your benefits are somehow magically protected, why then will VA give your money to satisfy the court order?
Question:
My question is I’m in the process of going through a divorce and I’d like clarification on my VA disability payments. Can the lawyer consider that payment as income?
Reply:
It isn't the lawyer who makes that call, it's state law and the court will enforce that. Every state that I'm aware of asks each party to a divorce to state all income. ‘All income’ is literal in that income from disability payments must be included in the financial statement. VA disability income is meant to replace income you'd be earning if you weren't disabled to some degree. If you weren't disabled and you were making equal money, that would be your income in a divorce. Disability income simply replaces what your earned income would be and it's legit to use that money...no matter what you hear, VA disability money is not protected in divorce.
Question:
Im a 100% service connected vet. Are courts allowed to include my entire compensation payment or just the amount the va gives for the children? Thank you for your time
Reply:
The courts are not only allowed to calculate child support and alimony using all your income, the law requires it. All your income...disability, savings, the whole thing. If you were married, your entire income would be available to support your family. When you're divorced you continue an obligation to the family and the court will use your entire income to calculate what you owe.
Don't buy into the rumors that there is an out in the 5301 rule...that isn't true and many vets spend some time in custody trying to tell the judge how to rule.
Pay the child support and then some...it's easier that way and it's the right thing to do for the kids.
Divorce, Child Support, and VA Disability Payments
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Department of Veterans Affairs Divorce Alimony Child Support
It doesn’t matter that you’re a disabled veteran who has a TDIU rating and she’s cheating on you and taking your kids and it’s all so unfair, there are no free divorce lawyers.
Your choice is to represent yourself in either filing or responding to her filing for divorce or hiring a lawyer who is competent in family law. Seriously, nobody wants to be involved in the mess you made. Divorce lawyers charge money because they deserve it.
Unless you’re rich, famous, hold a lot of property or have complex retirement plans with money in them, your divorce won’t be a TV show, it will be a bureaucratic process of filling out forms and making a few quick decisions. The family courts are overloaded and nobody has time to listen to how you were mistreated. Divorce is mostly a no-fault proposition today and all that’s left are finances.
Question:
Hello, I am a retired Army soldier with 100% disability. Can my disability benefits be garnished? I have asked several different people and there are several answers out there. Can you help me with what is true or point me in a direction that might have the correct answer? Respectfully.
Reply:
No, your disability benefits can't be garnished in the traditional sense. This means that creditors (auto loans, etc.) who you owe money to can't garnish the benefit as if it were a paycheck.
However, the money may be taken by the government to satisfy debt to the government (IRS, student loans, etc.) and the benefit money may be apportioned to pay child support and alimony if you've fallen behind. The term "apportion" means much the same as garnish so the end result is the same, your money can be used to pay court ordered family support obligations.
Question:
I'm a disabled veteran. I was married 15 years. I am divorced and pay my ex-wife $950 a month for life in Alabama. I went to court and divorce with no lawyer. This was set by the judge for life. I am moving to Texas to get married. Can I have this reduced to so many years of ex-spousal payment or get it reduced? And when I die, does she have rights to my money over my future wife?
Reply:
The terms of a divorce, the stipulations, specify exactly who pays what to who and in what amount for what period of time. These are orders of the court and the only way to change them is to return to that court and seek a modification of the stipulation. Who has rights to any property you may leave behind is usually determined in your will and if drawn by an attorney who has expertise in probate the will should take care of your concerns.
Q. Are VA benefits subject to levy,
Congress has never passed a law stating that veterans’ benefits may not be considered with respect to spousal support. Nor has the U.S. Supreme Court ever held that VA benefits cannot be considered in this manner.
38 CFR § 21.330 - Apportionment.
Where in order, VA will apportion subsistence allowance in accordance with § 3.451 of this title, subject to the limitations of § 3.458 of this title.
How Divorce, Alimony, and Child Support
Affect Veterans' VA Benefits
VA benefits can be garnished only for
spousal or child support, and only
under certain conditions.
Veterans Divorce Alimony Child Support Apportionment
Question:
Im currently over seas and.my wife has been cheating in me for 6 months. She moved the man into my house and is now trying to take my kids from me and get through this divorce without getting hit with infidelity. I need a lawyer but dont habe any money. Im from killeen Texas. Please im a veteran with honorable discharge and workimg as a private security guard over seas i need help
Reply:
There are no free divorce lawyers. None, zero, nada, zip. That you're a veteran doesn't get you free lawyering for any civilian mistakes you've made. Veterans may get a slight break if they need the services of a lawyer when dealing with VA but otherwise you're a civilian and nothing more or less than that. Nobody promised you that life would forever be a free ride.
You may recall in basic training that some random drill sergeant told you that if the Army had wanted you to have a family you'd have been issued one by the quartermaster? This is why. Sarge knew that it would cause you trouble some day.
For what it's worth the court doesn't care about infidelity and nobody will suffer any sort of legal charges. Divorce court isn't the drama you see on TV, most divorces these days are 'no fault' like car insurance, nobody much cares who did what, they just want to figure out who owes what to who and then get on with it. All the divorce court will do is to tell you how much you owe in child support and/or alimony and all the reasons this is happening really won't be part of the discussion.
You can represent yourself. Most divorce courts are set up for citizens who can't afford lawyers because divorce lawyers are very costly and reserved for those who have plenty of money and property to argue over. If you don't have plenty of money and property, your outcome will likely be the same with or with representation.
In fact...since you're not in CONUS, you can probably make your appearance by phone. You'll be required to do a lot of paperwork for the court ahead of time and then call in to be sworn in and so on. You'll have a few minutes to speak and that's that. The court will tell you about visitation with the kids and so on and you're done. The very best thing you can do for yourself is to drop any anger and act like the adult you are. The court will focus on finances and the children, nothing more.
When you walk into a courtroom as a defendant you have one thing going for you...your credibility before the judge. Your cred is at 100% when you start the proceedings and you can either keep that or destroy it for yourself. If you act like a reasonable person and don't make wild statements and accusations, the judge will appreciate that and things will more likely go your way. If you act the fool and carry on, the judge will take that into consideration as well.
Divorce is tough and we all get over it. I've gotten over it twice. As you read this you'll think I'm full of it but you'll get through this too. Good luck.
Divorced Military Spouses: What Benefits Do They Qualify For?
Divorce is complicated, military divorce is even more complex. From medical benefits to retirement,
this guide breaks down what benefits divorced military spouses are eligible for.
Love & Marriage And Divorce and Alimony and Child Support and the Disabled Veteran.
While you’d probably have guessed that I answer a lot of questions about filing claims, there are days when I get so many questions about divorce I’m surprised anyone is left with a spouse.
This is also the topic that generates the most anger. If we talk about shooting the messenger, this is where I draw the most fire, I sometimes think I hear the BBRRRRRPPPPPP of a Warthog strafing me.
Folks in the midst of a divorce are usually pissed off at the world so when I tell them what they don’t want to hear, it’s my fault. I’ve been threatened with ass-whoopings and I get it...the bearer of bad tidings is never welcome.
But the harsh fact is that your divorce is nothing new to the rest of the world. Nobody else really wants to hear about it.
There are no free divorce lawyers. Let’s be clear...there are no free divorce lawyers.
Question:
YOU ARE SPREADING OLD ANTIQUATED LAWS ABOUT VETERANS DISABILITY!! ROSE VS ROSE IS NOT LAW HOWELL VS HOWELL MAY 15,2017!! I WON MY CASE!! IT'S PEOPLE LIKE YOU THAT CONTINUE TO HAVE THIS SYSTEM SCREWED UP!! MY UESTION IS WHY DO YOU LIE AND HURT YOUR BROTHERS? 23 A DAY DIE BECAUSE OF WHAT YOU SAY!! 38USC PROTECTS AND MAKES IT OFF LIMITS TO ANY THIRD PARTY DEBT COLLECTOR !! WHICH IS CHILDSUPPORT!! HOW DO I KNOW ? WE ARE SUING HEM NOW THAT I'VE WON THAT THEY CAN'T USE MY VA DISABILITY AS NUMERATION FOR INCOME 38USC 3.458(G) MAKE IT MANDATORY THAT THE STATES DO AN APORTIONMENT IM-98 POST ROSE CAME FROM THIS BULLSHIT CASE THAT WAS MISINTERPERTED!! AND SINCE THEN CONGRESS HAS APPEALED AND REPLACED THE ROSE VERDICT!! TYE VETERN ACT CAME FROM THAT RULING IN 1988!! DON;T TELL ME I'M WRONG AND I WON MY DAMN CASE USING EVERYTHING AND MORE THAT I JUST EXPLAINED!! TAKE THIS BULLSHIT DOWN OR CORRECT YOUR FACTS!!!!
Reply:
Always nice to hear a rational opinion. Based on what you've told me I see the errors of my ways. I'll begin to take down the last 15 years or so of my writings about divorce since you say so.
You and your friends be sure to stay in touch so I can keep up with just how angry you are about your life and what a raw deal you're getting.
BTW...not typing in all caps, using a spell checker, and correcting punctuation as you type will make your incoherent and pointless rants seem more palatable, not quite so much like you're yelling.
Just a thought.
Question:
I am writing on behalf of a fellow soldier and combat brother of my husband's. He is getting an apportionment taken out of his va disability check that is going to his ex wife in place of his child support but iowa will not recognize it as payment so iowa says he is not paying and back child support is piling up etc. I would love to talk more in depth about this if you are Interested because the research I have done states this can be a loophole in the system and I have contacted senators etc and they are interested but if I can't get this particular person on board with giving up his info how can we still help other vets this is happening to?
Is this happening or is this man misunderstanding the system?
Thanks.
Reply:
This issue affects many veterans and is poorly understood even by family practice attorneys, the family courts system and the child support enforcement offices of most states. Offices of your representatives rarely have a clue because they don't understand how this unique "apportionment" system of the VA works. VA payments may not be garnished in the usual fashion. There are laws that protect a veterans disability payments from creditors. However, the VA recognizes how important child support and alimony issues are to the court ordered beneficiary and they allow for a process called apportionment. The beneficiary of the family court order may apply to the VA seeking some of the payment that has been ordered. Once VA investigates the application for apportioned benefits, VA may order that a payment be deducted form the VA benefit of the obligor and sent directly to the obligee.
Most states require that any and all payments for child support and alimony be sent to the state enforcement agency for distribution to the obligee. This ensures that the state is able to account for the timely payment of the correct amount that will satisfy the court's order. The goal is to avoid disputes of who sent how much money and when.
Any payment sent directly to the obligee (or to the child in child support cases) is not recorded by the state enforcement offices and is therefore seen as a gift. Gifts are not recorded and can't satisfy the court's order.
VA will not work with the state. VA will only communicate with the obligee and the veteran. This allows VA to avoid getting too deeply involved in hundreds of thousands of divorce disputes.
Far too many veterans waste time seeking help from Senators or other politicians without understanding that no politician has any legal authority to do anything to correct this situation on an individual basis.
There is only one source to turn to so that this can be fixed properly. The veteran must turn to the family court that has jurisdiction of the divorce order. That is usually the family court where the obligee or the children claim permanent residence. The veteran should contact the clerk of court and ask for a hearing before the judge to ask that any VA apportionment money be recorded as meeting the court's order. The veteran may act "pro se". This means the veteran does not have to have an expensive family law attorney as representative. Family courts are often structured so that disputes like this may be sorted out without a great deal of fuss or expense.
Once the magistrate has ordered that the VA apportionment payment does satisfy (or partially satisfy) the intent of the original order, the state enforcement office will take it from there. The judge may even order that all past payments be recorded and used to satisfy any arrears.
Most importantly, veterans must clearly understand that this is the only way that anything will be done about the issue of apportionment. There is no other pathway that I'm aware of to resolve the problem. The family courts wield a lot of authority and other legal entities are not likely to interfere with any order from those courts. This is a problem that the veteran can and must solve for him or her self.
I get a lot of communication from divorcing veterans, their spouses, friends, neighbors...everyone has a strong opinion about military divorce, civilian divorce and veterans divorce. In a nutshell, there is only a civilian divorce. The military didn't marry you, the state you were in did. A state will divorce you, the VA wants nothing to do with it. Your status as a veteran carries zero weight in divorce court. Nobody cares what a hero you were and what a tramp she is as your spouse...most divorces are no-fault so the process is pretty simple. When you enter into a divorce court you have your dignity and credibility with you and nothing else. Nobody cares about who did what to whom, they just want to follow the formula that state uses and get you out of there.
There are no free veterans divorce lawyers.
There are no free divorce lawyers.
Most divorce courts are set up for pro bono litigants so you can represent yourself. Often enough you can appear by phone if circumstances merit. Divorce sucks. Divorce is painful for everyone. Do your best to not make a fool of yourself and as time passes, so will all this.
Question:
Since the VA adopted the new mileage application via the internet, I haven't received any travel money. I checked with my travel clerk and he told me that there is a big back log here in Florida. Have others experienced this problem? Thank you Jim.
Jim's Reply:
I'm in Florida so I feel your pain.
We're supposed to be reimbursed a per mile amount for certain travel to and from medical care. In my time with VHA I've seen long lines and over an hour wait to receive a few dollars gas money. Then we went to a fill-out-the-form system. The check-in kiosks were introduced a few years back and those worked well other than you had to remember to sign out and sign in again to submit the travel voucher.
Not all that long ago I checked in to my small clinic and the kiosks were unplugged and parked in a corner. I was told to check in the old school way and only when I asked, I was given an old form to complete for travel pay. I was told the kiosks were gone forever.
I returned to that clinic 2 weeks later and the check in kiosks were back, plugged in and ready to go. There was no option for travel reimbursement, I was told to go to the Internet and figure it out. I haven't seen any deposits either.
I don't have any answer for you other than...welcome to your VA. They care!
Jim Strickland is a Vietnam era Army veteran and nationally recognized expert on VA disability benefits.
Jim writes extensively about VA and Social Security disability benefits.
Jim's Mailbag is a regular column featured at Stateside Legal where veterans, servicemembers, and family members can ask Jim their questions about VA and Social Security disability benefits.