Legally Speaking Military Focused Family Law Facts By Tana Landau, Esq.
The Court concluded: “Congress clearly intended veterans’ disability benefits to be used, in part, for the support of veterans’ dependents.” Therefore, although your VA disability benefits cannot be divided by the Court as property, the Court will consider it in determining how much child or spousal support you must pay. Can My Disability Benefits be Garnished?
Veteran Disability Pay and Divorce: What is There to Lose? If you are a Veteran receiving VA disability compensation, you may be concerned about how much of that income you may lose during a divorce. While each state has different laws governing divorce, child support, and spousal support, there are federal laws that every state must follow. These are some of the questions you may find yourself asking if you are going through a family law matter. Can Disability Benefits be Divided as Property When I get Divorced? No. Under the Uniformed Services Former Spouses’ Protection Act, VA disability payments are exempt from being treated as marital property. This means it is not an asset which can be divided at divorce. Will VA Benefits be Considered as Income for Purposes of Child Support and Spousal Support? Yes, VA disability payments are considered as income for calculating child support and spousal support. In Rose v. Rose, 481 U.S. 619 (1987), the U.S. Supreme Court found that VA disability payments were intended not just for the veteran, but as the law stated, to “provide reasonable and adequate compensation for disabled veterans and their families.” 68 WWW.SanDiegoVeteransMagazine.com / November 2023
Yes, there are circumstances where VA disability benefits can and do get garnished (in other words a portion of your disability payment can be taken directly). If you fail to pay child support or spousal support your disability payments can be garnished, but only when you’ve waived part of your military retired pay in order to receive VA disability benefits. So if you waived part of your taxable military retirement to receive nontaxable disability compensation, your disability benefits can be garnished to meet alimony and child support obligation. This is because the purpose of VA benefits is to provide support not just to a veteran but to his/her family as well. How Much of my Disability Benefits Can be Garnished? Typically, between 20% to 50% of your disability pay can be garnished depending on your support obligation. However, only the portion of your disability income you are paid in place of your military retirement can be garnished. The remainder of disability pay cannot be garnished and is protected. Will a Garnishment Ever be Denied? Yes, under certain circumstances a garnishment to a former spouse can be denied if: 1) The garnishment was to cause undue financial hardship 2) The veteran’s former spouse or child has not filed for apportionment 3) The former spouse is living with or married to another person 4) The former spouse was found by a state court to have been guilty of infidelity (in an “at fault” state)