How Divorce and Child Support Can Affect Your VA Benefits

Veterans receiving disability compensation who are going through divorce proceedings often wonder if their VA benefits will be at risk of being taken away ("garnished") to pay for child or spousal support. Each state has its own laws governing allocation of property and maintenance (also called alimony) after a divorce. But state family law courts are also required to follow federal laws that dictate when VA benefits can be redistributed.

For example, under the federal Uniformed Services Former Spouses' Protection Act, VA disability payments aren't treated as marital property and can't be divided as part of a divorce. However, the benefits can be considered as income by the court when determining the amount of your maintenance or child support, and (in limited circumstances) can be garnished by your state if you don't meet these obligations.

When Can VA Benefits Be Garnished for Child Support?

VA benefits are protected from garnishment for unpaid taxes and most creditors' claims, but if you don't make your child support or spousal maintenance payments, your state may order your VA benefits to be garnished. This can be done because Congress specifically sets out in Title 38 of the United States Code (the federal laws that regulate veterans' benefits) that VA benefits are intended to be used to provide support to dependents.

However, your VA disability compensation can't be garnished unless you waive part of your military retirement pay in order to receive VA disability benefits. So if you waived part of your taxable military retirement to get nontaxable disability compensation, the amount of disability compensation you were paid in place of retirement pay can be garnished. The remainder of your disability compensation is protected.

How Much Can Be Taken From VA Disability for Support Payments?

The VA will decide how much of your benefits can reasonably be garnished without causing you "undue hardship." This means considering whether you have other sources of income, any expenses you have for special needs, your divorced spouse's income, and any special needs of your former spouse and children not in your custody that require extra funding.

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. An equal amount of funds will be provided to each child out of the garnishment.

VA Apportionment to a Child or Divorced Spouse

Apportionment is the process by which the VA allocates a certain portion of a veteran's benefits to a family member. The VA will pay the eligible family member part of the veteran's monthly cash benefit directly, reducing the amount of the veteran's paycheck.

Benefits won't be garnished for alimony until the divorced spouse first elects to receive the "apportioned" share of the veteran's benefits. Similarly, children must file for apportionment before child support garnishment can occur. Family members of disabled veterans can apply for apportionment by filing VA Form 21-0788, Information Regarding Apportionment of Beneficiary's Award.

Can Veterans With 100% VA Disability Have Their Benefits Garnished?

In theory, even veterans with a 100% disability rating may have their benefits garnished for child or spousal support, subject to the restrictions outlined above. But keep in mind that if you have a 100% rating (or individual unemployability), the court is likely to find that you're unable to work—and therefore can't bring in any other income—so garnishing your benefits could be a prohibited undue hardship.

Does VA Disability Count as Income for Child Support?

Even if your benefits can't be garnished because you didn't waive any military pay (or any of the other valid reasons), in most states your VA income can still be considered by the court when deciding your support obligations. So if your VA disability benefits are a significant part of your total income, you may end up using your benefit payments to meet child support or alimony obligations.

Getting Legal Help

Veterans seeking to protect their VA disability benefits or establish fair payments of child support or spousal maintenance should consider reaching out to an experienced family law attorney. For more information, see our article on how divorce lawyers work and when you might want to hire one.