Many disabled veterans become concerned about how much of their VA income they may lose during and after a divorce, due to property division, alimony, and child support. This article will address these issues.
Each state has its own laws governing divorce, child support, and alimony. But there are also federal laws governing the distribution of veterans benefits, and state family law courts are required to adhere to these laws. Federal law provides certain protections for veterans benefits.
Disability Benefits Not Subject to Marital Property Division
Disabled veterans receiving disability compensation or pension are often concerned about losing half of their disability benefits as part of the property division in a divorce. They needn’t be concerned about this. Under the Uniformed Services Former Spouses’ Protection Act, VA disability payments are exempt from being treated as marital property and cannot be divided as part of a divorce.
When VA Benefits Can Be Garnished
Your VA benefits are protected from being garnished to pay unpaid taxes and most creditors’ claims, but in certain circumstances, VA benefits can and do get garnished. This is because the purpose of VA benefits is to provide support not just to a veteran, but to his or her family.
If you fail to make alimony (spousal support) and child support benefits, the state can sometimes order your VA benefits to be garnished. This can be done because Congress specifically set out in Title 38 that VA benefits are intended to be used to provide support for dependents. The amount that can be garnished will vary based on how many dependents you have to support.
However, your VA disability compensation cannot be garnished at all unless you waived part of your military retired pay in order to receive VA disability benefits. In other words, 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 obligations. Only the amount of the disability compensation you were paid in place of retirement pay can be garnished. The remainder of your disability compensation is protected.
How Much of My VA Benefits Can be Garnished?
The VA will decide how much of your benefits can reasonably be garnished. This analysis will consider whether you have other sources of income, any special needs you have that require you to have more income, the amount of income that is available to your former spouse, and any special needs of your former spouse and children not in your custody that require extra funds.
Typically between 20% and 50% of your benefits can be garnished. Less than 20% is considered to be an insufficient amount for a veteran's dependents, and more than 50% is considered to cause undue hardship to a veteran. Equal amount of funds will be provided to each child out of the garnishment.
When Benefits Will Not be Garnished
Under certain circumstances, states cannot garnish your VA benefits to satisfy alimony or child support obligations. Garnishment is not permitted when:
- garnishment would cause you undue financial hardship
- your former spouse or your child has not filed for "apportionment" (see below)
- your former spouse is living with another person and "holding her or himself out as the spouse of that person" (meaning acting like they are married and perhaps referring to each other as husband and wife), or
- your former spouse was found by state court to have been guilty of "conjugal infidelity" (cheating).
Note that if your child has been adopted, generally only partial garnishment will be permitted.
Apportionment of VA Benefits
Apportionment is a process by which the VA assigns a certain portion of a veterans benefits to a family member. Basically, the VA will pay the eligible family member part of the veteran's monthly cash benefit directly, thus reducing the amount of benefits the veteran will receive.
In no case will be benefits be garnished for alimony until the former spouse first elects to receive the "apportioned" share of the veteran's benefits. Similarly, claims for each child's right to an apportioned share must be filed before child support garnishment can occur. The family member must apply for apportionment by filing VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award, before a garnishment for spousal or child support will be considered.
Consideration of VA Income
Even if your VA benefits can't be garnished because you didn't waive any military pay or because of any of the above reasons, in most states your VA income can still be considered by the judge in deciding your support obligations. If your VA disability benefits are a significant part of your total income, you may end up using your benefit income to meet child support or alimony obligations.
For legal help in protecting your VA disability benefits or establishing a fair amount of support, contact a VA disability lawyer.