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Welcome Aboard!
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.
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.
Read the syllabus & the case here.
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 basis
is "Do I have to pay child support or alimony with my VA disability money?
I'm told that the law protects me from that."
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
Contact VAWatchdog
<jim912@gmail.com>
Fax us toll free
1-888-658-5058
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