If you’ve ever wondered, “Is a divorced spouse entitled to VA disability benefits,” stay tuned because there’s a simple answer with a more detailed explanation: NO!
How disability payments from the VA can be affected by divorce settlements is best summed up by the United States Supreme Court: While the question is complicated, the answer is not.
Disability payments are NOT subject to divorce settlements.
If you are a divorced service member or veteran, there are several circumstances however that could potentially impact the payment of your disability payments, and of course answer the question for you of, is a Divorced Spouse Entitled to VA Disability Benefits?
In this article, we will break down for you what variables, verdicts, and legislation that could impact your disability payments and their availability to your former spouse.
Military personnel are under tremendous amounts of pressure. The stress from long hours, deployments, injuries, and duty puts a great amount of strain on service member marriages. This strain, for some, inevitably leads to divorce.
In fact, according to this study by Princeton University and the RAND corporation, military marriages are more likely to end in divorce after the service member has left the military.
While military service provides many incentives for getting married, unfortunately, life after service for many includes filing for divorce.
How does divorce affect my VA benefits overall?
In a landmark Supreme Court decision in 1981 that reversed a lower court’s ruling, the case of Mansell v. Mansell ruled that member’s/retiree’s retired pay was not subject to a divorce settlement in community property states like Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Community property states treat property that is acquired over the course of the marriage as jointly owned, and that communal property is divided evenly at the dissolution of the marriage.
In the majority opinion of Mansell v. Mansell, Justice Thurgood Marshall said “We concluded that treating such pay as community property would do clear damage to important military personnel objectives. We reasoned that Congress intended that military retirement pay reach the veteran and no one else.”
While that’s true, Congress did take steps to illustrate that it did indeed expect courts to take retirement and disability payments into account when determining income.
Congress the following year passed the Uniformed Services Former Spouses’ Protection Act (USFSPA).
This law authorizes state courts to view “disposable” military retired pay as divisible, communal property in divorce cases.
The act also allows up to 50% of direct payments paid by uniformed services to be paid to an ex-spouse if the divorce meets correct criteria, enforces payments for alimony and child support (in conjunction 42 U.S.C. 659) and lets an active or retired service member select a former spouse to receive payments under the military Survivor Benefit Plan, either voluntarily or by court order.
Some divorced spouses may be eligible to enter military installations to access to military-sponsored health care, commissary, and PX.
USFSPA allowed “disposable” retirement income to be divided by state courts in a divorce settlement.
However, rather than establishing a federal standard, the law leaves interpretation to states.
There are implications for veterans moving into public sector careers with the federal government, as they have the option to waive their military retirement benefits so their service counts toward their civilian retirement calculations.
This would preclude former spouses from entitlement to retirement benefits.
How this law is applied depends on the state’s definition of “disposable,” if the veteran concurrently receives retirement and disability benefits, and if the spouses remarry.
This act, however, specifically excludes disability in the definition of “disposable retirement pay.”
So while VA Disability benefits cannot be considered a communal asset in a divorce, they do factor into your income.
How is Alimony different from Child Support for Veterans?
Alimony is a court-ordered monthly cash payment paid to an ex-spouse.
These payments are put into place to make up for any shortfall in splitting communal assets in a marriage.
Alimony is based on the premise that both members of the marriage are responsible for supporting one another.
Alimony is governed by the state and local laws the divorce is tried in.
Factors that are considered when determining the level in which a spouse must be compensated include the health of spouses over the course of the marriage, any financial burdens the spouse took on over the course of the marriage for the betterment of their partner, and how much responsibility spouses took on in maintaining the household.
In contrast, child support payments are made by the non-custodial parent for the narrow purpose of supporting a service member’s children. These payments, unlike alimony, and can only be applied to child-related expenses like medical bills, clothing, and food.
Whereas alimony can be spent on whatever the spouse deems appropriate.
These payments are also governed by the state and local jurisdiction the divorce is tried in, but these payments are typically determined by comparing the overall cost of a child’s expenses and the ex-spouses’ income.
Can I dispute the court’s determination of child support?
As mentioned, divorce proceedings and courts are subject to state and local jurisdictions, so the steps to challenge a court’s ruling on child support will differ based on where a service member lives.
However, practical rules of thumb for every jurisdiction include returning to the court that tried the divorce and filing a request for a modification to the divorce agreement, serving the ex-spouse to alert them of your request, submitting proof of financial standing.
Hiring a lawyer is recommended, but not a prerequisite.
Is there a difference between Retirement and Disability and how it relates to child support?
Yes, and it is important to understand the distinction between retirement and disability payments.
Rank will be a consideration for retirement, but not for disability payments.
Retirement benefits are a pension that a service member earned through years of service and are subject to income tax.
Disability is a cash settlement paid to veterans because of a diminished capacity to work as a result of service and is non-taxable.
Since 1941, retired members of the military were ineligible to receive both retirement and disability payments, or “double-dip.”
These payments must be offset. For example, if a veteran may receive $2,000 in retirement benefits, and a disability payment of $600, the amount of disability is subtracted from the eligible retirement pay. The veteran receives $2,000 but the tax burden $1400. This also lowers the “disposable” amount of retirement income.
After 2014, National Defense Authorization Acts are known as Combat-Related Special Compensation (CRSC) and Concurrent Retirement and Disability Program (CRDP) authorized increased payments without an offset for specific veterans.
CRDP was applied to individuals with 20 years of qualifying military service (or retired under the Temporary Early Retirement Act) with any service-connected disability with a rating at least 50% or greater by the VA.
In those cases, divorced spouses who had a fixed amount awarded in a divorce decree were not eligible for more based on increases to retirement pay under CRDP.
Disabled veterans with a rating of less than 40% and a non-combat disability are not eligible for CRDP must offset payments from disability.
For a former spouse who would receive less money because of a reduction in retirement pay, courts required the service member to make up the difference.
It is important to note a disability and retirement are not interchangeable. The disability rating found by the VA does not equate to the offset of retirement pay. For instance, if a veteran is assigned a rating of 40%, it does not mean the veteran must waive 40% of their retirement pay.
Can my child support payments automatically get taken out of my veteran benefits check?
While title 38, U.S. Code, “Veterans’ Benefits,” states at §5301(a)(1) –
“Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”
This doesn’t mean disability payments are exempt.
Courts don’t consider family to be normal creditors.
While disability payouts are not taxable, states do incorporate them into calculations of a service member’s gross income when determining child support and maintenance.
This stems from the Supreme Court decision Rose v. Rose. In that case, a disabled Vietnam veteran divorced after having two children and 10 years of marriage.
The court affirmed a lower ruling in a Tennessee court that state courts may to hold a disabled veteran in contempt of court for not paying child support.
This is true in cases where a veteran’s income is limited to veterans’ benefits received as compensation for a service-connected disability.
Veterans with an unpaid child support obligation must utilize veterans’ benefits or be held in contempt of court. The court noted, “Children may rightfully expect to derive support from a portion of their veteran parent’s disability benefits.”
Ultimately while disability payments could not be divided in a divorce settlement, the income is taken into account when determining child support and maintenance payments.
In 2017, the Supreme Court ruled states could not order a veteran to make extra payments to a spouse.
In this case, the court overruled state courts that said former spouses had a “vested” interest in disability payments.
Waived portions of retirement pay were not subject to a divorce decree. This is applied before or after a divorce decree, as the court ruled the difference was “semantic.” However, courts can still use disability payments to determine the overall amount of support payments.
The additional compensation for dependents, 38 U.S. Code § 1115 states:
Any veteran entitled to compensation at the rates provided in section 1114 of this title, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents in the following monthly amounts:
(1) If and while rated totally disabled and—
(A) has a spouse but no child, $150;
(B) has a spouse and one or more children, $259 plus $75 for each child in excess of one;
(C) has no spouse but one or more children, $101 plus $75 for each child in excess of one;
(D) has a parent dependent upon such veteran for support, then, in addition to the above amounts, $120 for each parent so dependent;
Notwithstanding the other provisions of this paragraph, the monthly payable amount on account of a spouse who is (i) a patient in a nursing home or (ii) blind, or so nearly blind or significantly disabled as to need or require the regular aid and attendance of another person, shall be $286 for a totally disabled veteran and proportionate amounts for partially disabled veterans in accordance with paragraph (2) of this section; and notwithstanding the other provisions of this paragraph, the monthly amount payable on account of each child who has attained the age of eighteen years and who is pursuing a course of instruction at an approved educational institution shall be $240 for a totally disabled veteran and proportionate amounts for partially disabled veterans in accordance with paragraph (2) of this section.
(2) If and while rated partially disabled, but not less than 30 percent, in an amount having the same ratio to the amount specified in paragraph
(1) of this section as the degree of disability bears to total disability. The amounts payable under this paragraph, if not a multiple of $1, shall be rounded down to the nearest dollar.
Disability payments can be subject to child support and maintenance and can be garnished.
U.S. Code 659 gives municipalities the authority to impose garnishes on wages.
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About the Author
Brandon Dyer was an active duty soldier and a member of the 3d U.S. Infantry Regiment (The Old Guard). He supported ceremonial missions as a military photojournalist in the national capital region.
After honorably discharging in 2017, Brandon worked as a government contractor for the Department of Homeland Security, supporting first responders in his role with Homeland Security’s Science and Technology Directorate.
Today as a contributor to VA Claims Insider, he supports veterans by telling their stories and helping them reach their goals with quality information and analysis.