Permanent and Total Rating
Veterans Clinical Psychologist


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.


Veterans Law Attorney
Veterans Law Attorney


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 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

Email Jim Strickland

<jim912@gmail.com>

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1-888-658-5058

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Claim Denied Appeal


The Veterans Voice

International


Opinion   Editorial

News & Views


(Under Construction)




VA SPOTLIGHT

Brett Valette, PhD


UPDATED...April 2017

This is a series of stories

bringing light to the dark side of the

VA’s treatment of some Veterans

applying for disability.  Whether out

of frustration, desperation, anger, or

‘just to make it right” they contacted me, and together, we fought the injustice. 

These are actual cases and claims. 

I have changed names and identifying

information for confidentiality reasons.


Spotlight March 2017

This is the first in a series of stories bringing

light to the dark side of the VA’s treatment

of some Veterans applying for disability. 


Spotlight April 2017

Claim Killer DBQ Questions.
VA Spotlight is a series of stories bringing

light to the dark side of the VA’s treatment

of some Veterans applying for disability.

Whether out of frustration, desperation,

anger, or ‘just to makeit right” they contacted

me, and together, we fought the injustice.


Click Here To Contact Dr. Valette


Obstructive Sleep Apnea (OSA)

VAWatchdog​

America's Leading Resource For
Military Veterans News & Benefits Information 

Over Ten Years of Service to America's Military Veterans

Since 2005 This Is The Site VA Reads When They

Want To Learn What They've Been Doing

Welcome Aboard!

Veterans Law Attorney
Veterans Law Attorney
Veterans Medical Opinion Doctor


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

willicklawgroup.com



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.



Things You'll Need














Mail your forms, documents
and evidence here...
Department of Veterans Affairs
Claims Intake Center
PO Box 5235
Janesville, WI 53547-5235


Toll Free Fax: 844-822-5246


We recommend that you mail a copy
and then fax a copy!  Yes, it's twice the
work but maybe VA will only lose one
and the other will be processed.
Remember: Use Certified Mail!

Forms to File Claims

VA Form 21-526EZ
For...
Disability Service Connection
Secondary Service Connection

IncreasedDisability Compensation

Temporary Total Disability Rating
 Individual Unemployability
Compensation under 38 U.S.C. 1151
 Special Monthly Compensation
Specially Adapted Housing

Special Home Adaptation

Automobile Allowance/Adaptive Equipment
Benefits Based on a Veteran's
Seriously Disabled Child


VA Form 21-0958 - NOD
​Notice of Disagreement

VA Form 21-534 EZ

Application for DIC, Death Pension
Change of Address​

TDIU Annual - VA Form 4140
Declaration of Status
of Dependents
VA form 21-686c


How To

How To Apply For SSDI

How To Apply For

TDIU Unemployability

How To Use

Disability Benefits Questionnaires

(DBQ's)

How To Apply For A Disability Rating

How To Apply For An Increase

to an existing rating

How To Retrieve Your

Military Personnel Records


Research Your Claim

The M21-1MR
The CFR
TDIU
SMC

The Schedule For Rating Disabilities




Guide to Federal Records

Records of the Veterans Administration [VA]


(DTRA)

Defense Threat Reduction Agency


VA Payment for Emergency Care


Patient Record Flags



Veterans Law Attorney