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.
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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 & Divorce, Alimony, Child Support,
Garnishment, Apportionment, Family Court
Dear Jim Continued;
If we need help with divorce and child support we must retain a lawyer or DIY...like everyone else. Divorce lawyers can be expensive so many will choose to DIY.
The family courts are better prepared for pro se (representing yourself or DIY) participants than most other courts are. You aren't usually required to have a lawyer to represent you. Most family courts will allow you to use a speakerphone so you don't even have to travel to present yourself to the court. If you feel your obligations aren't right or that something else is wrong with the stipulations of your divorce decree, you can file the case yourself. You must first determine the current family court of jurisdiction...where the children reside today. Then you contact the clerk of court at that family court. The clerk is usually helpful and will instruct you about forms and fees required to get in front of the judge. The clerk can't help you to develop your case but will instruct you about what forms to use and any evidence (copies of the divorce, etc) that may be required. The clerk of court or other court staff will usually provide you with all you need such as phone numbers if you're calling in and so on. You'll eventually be assigned a court date and you'll be able to tell your side of the story.
You can use Google or another search engine to learn about the laws, rules and regulations that affect your case as you prepare your statement for the court.
When you do present your story, remember that the court deserves (and will demand) your respect and that you should only present facts.
Emotional displays and outbursts are not appropriate no matter what.
Present the court with a brief statement of facts and sit down. You aren't a lawyer and the court already knows the law so don't spend time quoting chapter and verse, be brief, be factual. If the court has questions, the court will ask them. Brevity is your best friend. Your credibility is the only thing you have going for you as a pro se litigant. If you do your homework, you'll get a fair chance to establish your rights.
Dear Jim,
I'm a 100% IU rated disabled veteran.....my husband and I have joint custody, I'm ordered to pay a modified amount of $784 per month for child support.....he was court ordered to live in Williamson Co. TX....while he moved without court permission to North Carolina I have spent a total of 10 days in 8 years....my children don't know me, I very rarely get to talk to them, 1. All calls are on speakerphone I didn't get to talk to them until 3 years had pass after the move. 2. They don't know me anymore. They aren't allowed to know me. 3. They resent me. While I'm paying child support I don't even get to see them....it's expensive to go to North Carolina since I live in Oklahoma. I got a modification of my child support in 2011 i requested another modification in 2015 and have received no answer. I can not visit them if I want to pay my bill and my child support I cannot go to work I do not qualify for any benefits that will pay my bills or put food in my cabinets or gas in my car cause nothing matters if I don't have my kids living with me.....he will not let them come to me or meet me 1/2 way or any type of visit.....they only think of me as the woman who sometimes they talk to on the phone and who sends them gifts...I can't even tell you what it has done to my mental and physical health. The only joy I had found in my marriage was ripped from me in lies, and theft....I will do without so i can support my children the only way I can while be buys new cars, new houses, the latest electronics....he receives at last I knew 70% disability with wife and 4-5 children and hold a big job for Rooms to Go in NC. I cant afford to go see the last visit was $2500 for 6 days including travel, lodging, food and entertainment. It would take me 18 months trying to get there. I'm at an end.....I've lost everything that truly mattered to me and am barely able to afford to keep myself. Why is there no help for ppl like me. Why do I have to be constantly punished disregarded just because i didnt want to live in a marriage that was toxic.....I could never afford a lawyer and when it came to the 2nd final divorce hearing I wasn't able to even to attend due to lack of transportation. I lost my house, my children, my belongings and never able to even a word in my defence my entire divorce. All in 3 months. In the last 8 years those three months have completely beaten me into the ground spiritually mentally physically emotionally. Is there anyone out there that will ever just listen and help me? I feel like everyone can take me for every thing including police and court offices......I am completely left in the dark.....sometimes literally when my power is off. If u have any suggestions I would love to hear it cause u will be the only one to ever tell me anything other than pay or go to jail that I'm a rotten person.
Continued below...
Dear Jim Continued;
Jim's Reply,
Divorce is always difficult. When there are children involved, divorce becomes even more of a challenge to deal with. Disabled veterans often believe that they should be allowed some sort of special consideration by the family court because of their honorable military service and disabling conditions. Many veterans object to their VA disability award money being used for child support or alimony obligations and some even believe that there are obscure federal laws and regulations that disallow veterans benefits being used in family court determinations. (There aren't.)
Family courts are all about the welfare of the children...children of the divorce are the priority in every family court. The goal of the court is to ensure that the children are cared for appropriately.
Every family court in America is overwhelmed with cases and every family court operates under a framework of draconian laws that ensure what little efficiency they can gain by using a formulaic approach when settling these emotionally charged disputes. Most divorces are 'no-fault', meaning there is no blame assigned to either side and the divorce is granted subject to certain stipulations ordered by the court. The stipulations usually address property divisions, alimony and child support. Property divisions are often the subject of hot debate, depending on wealth.
Alimony and child support aren't as debatable and are usually determined by a formula that is based on an accurate financial statement provided by each party. Each state may have a slightly different formula to determine financial obligations but the formula is required and family courts aren't usually able to deviate from the formula.
When determining financial obligations the court only considers facts that are derived from the financial statements supplied to the court.
This is where many veterans stumble...when the veteran fails to understand that the formula doesn't allow for anything much other than the raw numbers concerning total income, income potential, shared or personal debts and so on. That you're a disabled veteran and may have only disability income isn't part of the formula, only the dollar amounts are considered.
Modification requests to family court orders also vary widely state to state. Because of the burdens of the family courts, many states will only allow either party to the divorce to seek modification every few years. If the children have relocated to another state (rightly or wrongly), it's likely that the new state where they reside is the court that any stipulation modification request would have to be filed in.
Veterans, whether disabled or not, are not special in the family courts. We will not receive any special treatment...we're civilians and we'll be treated as such. Our incomes from disability benefits will be used by the family court to serve our families much as any other income would be.
Continued below...
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
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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.
Don't ever try to hide or disguise any income (like VA benefits).
Your credibility is your only asset 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...
"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.
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