Let’s be clear here; VA can mean either Virginia or Veterans Affairs depending entirely on context. Perhaps you live in the state of VA, or maybe you collect well-deserved benefits from Veterans Affairs, which you casually call “the VA.” All well and good. If, however, you collect disability compensation benefits from Veterans Affairs while living in Virginia, then you’re talking about VA VA, and maybe it’s time to go lie down. We must press on, though, because the nagging question is, can your ex-wife or soon-to-be ex-wife get her hands on some of that VA benefit here in VA? Here’s the word from our experienced military divorce lawyers:
VA Benefits & Disability Income
We must tread cautiously in defining our terms. Veterans Affairs benefits, such as disability income, are, according to the American Bar Association, not subject to “levy, seizure or attachment.” Your go-to legalese on this is United States Code Title 38 Part IV Chapter 53, casually known by readers of these things as 38 U.S.C. §5301(a)(1), which prevents your disability income from being taken by creditors. Your ex-wife is not a creditor. And your disability benefit is income. So she can be awarded a chunk of your VA benefits in spousal support.
But I Earned My VA Disability!
As one grows older and wiser, one appreciates the distinction between the law and justice. Yes, you may have earned VA disability income by becoming disabled in the line of duty serving your country. But that, unfortunately, is not the point of disability income. You are receiving money to provide “familial support” from the VA so that your disability does not hamper your family’s ability to live decently.
This was settled as far back as 1984 by the Supreme Court of the United States in Rose v. Rose, where SCOTUS found that VA benefits are not intended specifically to support only the veteran earning them. And that, sir, means she gets a piece of that pie. If you need a lower court ruling closer to home, we can give you Virginia’s own Lambert v. Lambert of 1990. Same issue, same outcome: it’s income. She gets a slice as spousal or familial support.
What is Considered Income When Considering Support?
For calculating spousal or familial support (helping her, or helping your children and her), the Virginia Code defines “gross income” as income from ALL sources. This means all manner of money coming to you:
- Royalties—that hit song you wrote in 1973 still brings in beer money, right?
- Severance pay—now that’s just harsh, but your last job’s last check is still income
- Trust income—ah, the cushy life of a trust fund baby…not you? Read on
- Capital gains
- Spousal support
- Gifts—Who can put a price on your dashing good looks? Nope, not those kinds of gifts
- Prizes—We’re pretty sure the correct legal term is “fabulous prizes,” since that’s how they’re always described on game shows
- Awards—We’re not talking about your bowling trophy; this means cash awards in academia (like a Nobel Prize), from settlements, and from legal actions
- Social Security benefits
- Worker’s Compensation benefits
- Unemployment insurance benefits
- Disability insurance benefits
- Veterans’ benefits
You caught that last one, right? According to the Virginia State Bar, your Veterans Affairs benefits, for disability or anything else, are income, and are subject to inclusion in calculations of spousal or familial support.
In calculating all your income from all sources, just put the VA benefits in there with everything else. All the money is in a pool, and she gets a court-determined portion of that pool money. That is all to say that spousal or familial support must include VA disability benefits. It does not speak to division of property, real and otherwise, in dissolving your Virginia marriage.
Can VA Disability Benefits Be Divided in Property Division?
The glimmer of good news here is that your VA disability benefits cannot be divided in property division, the step when the courts say she gets the house and you get the outhouse. Just as SCOTUS decided your VA benefits could be part of your income for calculating support, SCOTUS also decided to put it above the division of property, in 1989’s Mansell v. Mansell. (These cases are all Me v. Myself because the married husband and wife shared the same last name; this is less common today). In the Mansell decision, SCOTUS interpreted federal law to not permit division or partition of disability benefits as community or marital property upon divorce. So there you go—she can have a portion in spousal support, but it does not get divvied up as halfsies.
Have a Question about Your VA Disability?
Contact the Family Law Firm Military Servicemembers Trust
To get expert legal advice on exactly how spousal or familial support is calculated, and exactly how your VA disability benefits are treated, consult the lawyers at The Firm for Men. Contact The Firm For Men today to set up an appointment or give us a call at 757-383-9184. We’ve been serving Hampton Roads’ seven cities and beyond for over a decade, from Virginia Beach, Chesapeake, Norfolk, Suffolk and Portsmouth to Hampton and Newport News. Let us put our experience to work for you!