Under the Uniformed Services Former Spouses’ Protection Act, and as affirmed by a recent Supreme Court decision, Veterans Affairs (VA) disability benefits (separate from retirement income) are not subject to divisibility in a divorce. That is only one third of the question, however. Property division is not spousal support. Spousal support is not child support.
Divorce & VA Benefits
A divorce necessarily means a separation of property, assigning to each person that which is his and that which is hers. This is not the same as spousal or child support. Distinguishing between military disability pay and retirement pay further muddies the waters.
As explained by the American Bar Association (ABA), military disability falls into two categories:
- Military disability retired pay — If a military member is disabled, unable to perform duties, and has served 20 creditable years, that member can be placed automatically on a “disability retired list” and receive retirement payments; further, even if the military member has not served 20 years, the member can be placed on the list if the disability is rated at 30 percent or higher by DoD;
- VA disability compensation — If a military member receives an injury as the result of training and service, the member can receive compensation payments from the VA. Military members do not have to be retired to receive VA disability compensation
In 2017, the U.S. Supreme Court (SCOTUS) upheld in Howell v. Howell a military retiree’s right to avoid an offset in spousal support from military retirement pay when the retiree elects to lower retirement income in favor of disability pay. SCOTUS held,
“A state court may not order a veteran to indemnify a divorced spouse for the loss in the 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.”
This means, while the retirement pay can be divided during property settlement, the disability income cannot be divided. The spouse is not entitled to disability pay during property division.
The issue is nuanced in some cases, because “disposable retirement pay” is divisible, but disability income is not considered disposable retirement pay. As the ABA puts it:
“Because VA disability compensation is paid as a direct result of the service members’ disability, VA disability compensation funds cannot be considered divisible in any circumstance. In addition, if the military member’s retirement pay is reduced because he or she accepts VA disability compensation, only the remaining retirement pay is divisible.”
For a Virginia military man, this means a good attorney is needed to preserve his right to hold onto disability pay, while reaching an equitable split on the retirement pay (a separate issue).
For the Virginia man who is the husband of a military woman, you definitely need a good attorney with experience in military divorce to untangle the different types of disability and retirement income.
If seeking a share of your ex-wife’s income on your behalf, your attorney may be able to get the court to increase the size of spousal support payments.
Spousal Support & VA Benefits
A vast gulf emerges between equitable property division (including retirement pay or disability benefits) and spousal support.
Virginia’s Lambert v. Lambert court case showed that, while disability benefits cannot be divided, they can be considered income to the military spouse, and therefore can be used to calculate spousal support payments.
Spousal support is not intended as a punishment against the paying spouse or as a reward for the receiving spouse. The payments are meant to treat the receiving spouse fairly, to provide (in this case) for her continued style of life and comfort until she is able to support herself.
The courts have repeatedly affirmed that Virginia spousal support calculations will include all sources of income, including military retirement and VA benefits. VA benefits are especially protected by law, since, as the Virginia Court of Appeals itself said,
“V.A. benefits, unlike military disability retirement pay, are nonassignable, are exempt from the claims of creditors and are not liable to attachment, levy, or seizure under any legal or equitable process.”
Child Support & VA Benefits
VA benefits are intended to provide support for a military member’s entire family, to smooth the rough waters resulting from the injury incurred while serving this nation.
Congress, in writing Title 38, spelled out that the benefits are meant to help dependents (not just the serving member). The issue again becomes nuanced when a military member waives retirement pay (taxable) for disability income (not taxable).
If you do that, and you fall behind in spousal support or child support payments, your disability income can be garnished in a range from 20 percent to 50 percent of only the amount of the disability compensation you were paid in place of retirement pay.
The amount (20 to 50 percent) is specifically designed to ensure adequate support for the children without causing undue hardship to the disabled veteran. In addition, several conditions could limit garnishment even further:
- The military member’s financial hardship
- Your former spouse never filed for apportionment of benefits
- Infidelity by your spouse during your marriage
- Your former spouse is living in a relationship akin to marriage to another man
Please note that, if you maintain both spousal support and child support payments faithfully, no part of your disability benefits can be garnished. You have upheld your duty to country and family; you keep your benefits.
The seemingly endless permutations of issues means you need a highly experienced Virginia divorce attorney handling your case. At The Firm For Men you have an ally in your Virginia divorce. When you telephone our offices at 757-383-9184, or when you contact us online, you can schedule to speak with a real Virginia attorney experienced in military divorce, family law, and preserving men’s rights.
