Disability Payments Are Not Subject To Divorce Settlements
If you are a divorced service member or veteran, there are several circumstances however that could potentially impact the payment of your disability payments, and of course answer the question for you of, is a Divorced Spouse Entitled to VA Disability Benefits?
In this article, we will break down for you what variables, verdicts, and legislation that could impact your disability payments and their availability to your former spouse.
Military personnel are under tremendous amounts of pressure. The stress from long hours, deployments, injuries, and duty puts a great amount of strain on service member marriages. This strain, for some, inevitably leads to divorce.
In fact, according to this study by Princeton University and the RAND corporation, military marriages are more likely to end in divorce after the service member has left the military.
While military service provides many incentives for getting married, unfortunately, life after service for many includes filing for divorce.
Survivors & Dependents Education Benefits
Based on the veterans length and degree of service-related disability, or other qualifying factors for service members, educational benefits may be available to dependents and spouses who have not remarried.
Dependents must be between the ages of 18 and 26 to receive education benefits, though extensions may be granted.
Child Support Alimony And Va Disability
Generally speaking, alimony is a court-ordered legal obligation for one person to provide financial support to their spouse or ex-spouse after separation. Typically, it terminates if the spouse who is receiving that financial support remarries. Nonetheless, it is a way for one spouse to support the other and ensure that they can provide for the child. On the other hand, child support is basically an agreement that is made between the two parties, usually in a court setting with a judge. Child support orders one spouse to pay the other spouse who is likely in primary physical custody of any minor children. Similar to alimony, this monetary payment is intended to help support the raising of those kids and to give them some sort of financial benefit to help pay for food, clothing, transportation, etc.
Importantly, VA benefits can be taken into account when the court is looking at a veterans income for child support and alimony purposes. That is, VA benefits would be counted towards a veterans income when calculating child support payments. It is also important to consider the fact that VA benefits are tax-free. Therefore, the entire amount of the veterans disability compensation would be considered in a family courts determination of child support.
Also Check: How To Apply For Disability In Washington State
Whats A Survivor Benefit Plan
The Survivor Benefit Program is a voluntary annuity program that service members may buy as a retirement benefit for their family members. An annuity is a monthly payment received for life. Depending on their military service, members may use this program to buy a Survivor Benefit Plan or Reserve Component Survivor Benefit Plan .
We dont manage this program. Its managed by the Defense Finance and Accounting Service at the Department of Defense.
Does The Va Reduce A Veterans Compensation After Divorce
VA disability benefits do not count as an asset during divorce proceedings under federal law. What that means for veterans and former spouses is that a divorce lawyer or family court judge cannot automatically divide the disability income between the former husband and wife.
However, both parties should understand that laws regarding the division of VA disability income can vary by state. Attorneys representing each party should determine how state law impacts the division of all assets in the divorce and provide that information to their clients.
A few situations exist when either the federal or state government can garnish a portion of VA disability benefits. The most common reason for a garnishment is when the veteran falls behind or fails to make any payments towards child support or alimony. The amount the VA can legally withhold from disability payments and redistribute to another party ranges from 20 to 50 percent according to the veterans number of legal dependents.
The reason the VA allows garnishments from disability pay is that its mission is to support both veterans and their families. Federal or state governments cannot garnish VA disability payments for past due taxes, nor can creditors request a garnishment of the disability compensation to satisfy past due accounts.
However, the following restrictions apply in cases of VA disability compensation garnishment used to pay alimony:
Read Also: Nj Short Term Disability Pregnancy
What Are All Of The Benefits
Many benefits are included when you are a spouse of a Veteran given a 100% disability rating following a service-related injury.
Whether it is financial benefits, attendance benefits, or health benefits, you may be surprised to find the number of benefits you and your spouse can receive. The benefits will help ease some of the burdens of caring for those with a disability. You must know which benefits you qualify for and how you can use them.
Division Of Va Disability Payments After Deposit Into Account
Once deposited into a marital account, however, disability payments may potentially be divided in a divorce, particularly if they are commingled with marital funds. In Green, the husband commingled his VA disability payments into a bank account with marital funds, and the trial court divided the account as a marital asset, including the disability deposits. The husband appealed, and the Colorado Court of Appeals affirmed.
Had the husband segregated his disability payments in a separate account, and not combined them with any other funds, he likely would have ended up with that account set aside to him as his separate property. Moreover, federal law also has an anti-assignability clause, which prohibits VA disability payments from being assigned:
Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
You May Like: Home Loans For Disabled Persons With Bad Credit
Will Spouses Continue To Receive Va Benefits After Legal Separation Or Divorce
As alluded to above, veterans must notify VA if they become divorced from a dependent spouse for which they are receiving additional monthly compensation. However, do former spouses receive any VA benefits following divorce or legal separation? The Uniformed Services Former Spouses Protection Act exempts VA disability benefits from being divided during a divorce. In other words, VA disability compensation is not an asset that a judge can divide as marital or community property. It is important to note that this is different than the treatment of military retirement benefits, which can be a marital asset subject to division by a family court.
Importantly, when a veteran and their spouse are legally separated rather than divorced, the same rules still apply. Essentially, in the case of any separation where the veteran and spouse do not contribute to each other financially , the veterans spouse forfeits the right to future VA benefits.
Can Va Benefits Be Considered As A Source Of Income In Awarding Child Support Or Alimony
Yes, although some states may have cases or statutes which exempt VA disability benefits. In Rose v. Rose , the U.S. Supreme Court reviewed a contempt judgment against a veteran whose sole source of income was his VA disability compensation. He had refused to pay $800 a month in child support, claiming that he was constitutionally allowed to keep these VA benefits for himself. In an extensive review of the statutes and rules governing VA payments, the Court found that these benefits are not provided to support appellant alone. It went on to state that:
- Veterans’ disability benefits compensate for impaired earning capacity, H. R. Rep. No. 96-1155, p.4 , and are intended to “provide reasonable and adequate compensation for disabled veterans and their families.” S. Rep. No. 98-604, p.24 . Additional compensation for dependents of disabled veterans is available under 38 U. S. C. ‘ 315, and in this case totaled $90 per month for appellant’s two children. But the paucity of the benefits available under ‘ 315 belies any contention that Congress intended these amounts alone to provide for the support of the children of disabled veterans. Moreover, as evidenced by ‘ 3107 , the provision for apportionment we have already discussed, Congress clearly intended veterans’ disability benefits to be used, in part, for the support of veterans’ dependents.
The provisions for dependents, found at 38 U.S.C. 1115, are:
Also Check: Disability For Arthritis In Spine
Thrift Savings Plans And Divorce
The military equivalent of the 401 plan offered by private employers is the Thrift Savings Plan. Like a 401, the Thrift Savings Plan is a defined contribution plan. The service member contributes a regular amount, and the military may provide matching funds.
Like a 401 plan, the Thrift Savings Plan is considered an asset subject to division in a legal separation or divorce. As with a 401, the person who receives a portion of their former spouses Thrift Savings Plan may roll it over into an IRA or other qualifying rollover account. Unlike a 401, the Thrift Savings Plan does not need to be divided by a Qualified Domestic Relations Order .
With A Dependent Spouse Or Parent But No Children
Compensation rates for 30% to 60% disability rating
Find the dependent status in the left column that best describes you. Then look for your disability rating in the top row. Your basic monthly rate is where your dependent status and disability rating meet.
If your spouse receives Aid and Attendance benefits, be sure to also look at the Added amounts table, and add it to your amount from the Basic monthly rates table.
|Dependent status||30% disability rating||40% disability rating||50% disability rating||60% disability rating|
|Dependent status||30% disability rating||508.05||40% disability rating||731.86||50% disability rating||1,041.82||60% disability rating||1,319.65|
|With spouse||30% disability rating||568.05||40% disability rating||811.86||50% disability rating||1,141.82||60% disability rating||1,440.65|
|With spouse and 1 parent||30% disability rating||616.05||40% disability rating||875.86||50% disability rating||1,222.82||60% disability rating||1,537.65|
|With spouse and 2 parents||30% disability rating||664.05||40% disability rating||939.86||50% disability rating||1,303.82||60% disability rating||1,634.65|
|With 1 parent||30% disability rating||556.05||40% disability rating||795.86||50% disability rating||1,122.82||60% disability rating||1,416.65|
|With 2 parents||30% disability rating||604.05||40% disability rating||859.86||50% disability rating||1,203.82||60% disability rating||1,513.65|
Compensation rates for 70% to 100% disability rating
Read Also: Va Disability Sleep Apnea Eligibility Criteria
Is There A Difference Between Retirement And Disability And How It Relates To Child Support
Yes, and it is important to understand the distinction between retirement and disability payments.
Rank will be a consideration for retirement, but not for disability payments.
Retirement benefits are a pension that a service member earned through years of service and are subject to income tax.
Disability is a cash settlement paid to veterans because of a diminished capacity to work as a result of service and is non-taxable.
Since 1941, retired members of the military were ineligible to receive both retirement and disability payments, or double-dip.
These payments must be offset. For example, if a veteran may receive $2,000 in retirement benefits, and a disability payment of $600, the amount of disability is subtracted from the eligible retirement pay. The veteran receives $2,000 but the tax burden $1400. This also lowers the disposable amount of retirement income.
After 2014, National Defense Authorization Acts are known as Combat-Related Special Compensation and Concurrent Retirement and Disability Program authorized increased payments without an offset for specific veterans.
CRDP was applied to individuals with 20 years of qualifying military service with any service-connected disability with a rating at least 50% or greater by the VA.
In those cases, divorced spouses who had a fixed amount awarded in a divorce decree were not eligible for more based on increases to retirement pay under CRDP.
Survivors Pension With Aid And Attendance
What Is Survivors Pension with Aid and Attendance?
Survivors pension is a benefit paid to eligible surviving dependents of deceased wartime veterans.
Who Is Eligible?
You may be eligible if:
- the deceased veteran was discharged from service under other than dishonorable conditions, AND
- he or she served 90 days or more of active duty with at least 1 day during a period of war*, AND
- you are the surviving spouse or unmarried child of the deceased veteran, AND
- your countable income is below a yearly income limit set by law.
How Much Does VA Pay?
VA pays you the difference between your countable income and the yearly income limit which describes your situation . This difference is generally paid in 12 equal monthly payments rounded down to the nearest dollar.
Survivors Pension — Maximum Annual Pension Rates 2019-20
For a Surviving Spouse
Read Also: Free Exercise Equipment For Disabled
The Prior Court Order Was Entered By Agreement It Expressly States That My Ex
Not by a long shot. All the VA money is tax-free, so he would get even more money in the end by waiving a piece of the pension.
Lets take an example: Suppose Johns total retired pay is $1,600 and the court awards Mary, his former wife, 50%, or $800. Then John obtains a VA disability rating and elects to receive VA disability compensation, which equals $600. This means that he waives $600 of the pension to receive VA payments.
Now the pension-share payment from the retired pay center to Mary is only $500 a month instead of $800 . Shes short by $300 due to the actions of John in applying for VA payments.
Johns income is now $500 from the pension and $600 from VA. If hes paying taxes at 20% federal, 5% state, then hes receiving net: $375 from the pension and $600 from VA, for a total of $975, while Mary will only be getting $375 a month.
If John were to reimburse Mary, then hed pay to her the missing $300 each month, which is deductible for him on his taxes, and that only costs him $225 in his tax brackets. Thus he still has $750 after taxes, whereas before the VA waiver, he was receiving $800 taxable each month, or $600 after-tax income! And Mary has the full amount which the court initially ordered.
Divorced Spouse’s Survivors Benefit
If your ex-spouse was a disabled worker who died while receiving SSDI benefits, you’re entitled to divorced spouse’s survivors benefits, but only if you were married to your ex for at least ten years and one of the following applies to you:
- You’re 60 years old or older.
- You’re disabled and between 50 and 60 years old.
But if you remarry before you turn 60, Social Security will deny your benefits unless:
- you were between 50 and 60 and disabled at the time of marriage, or
- your new marriage ended before your ex-spouse died.
You May Like: Student Loan Forgiveness With Disability
What The Law Says About Divorce And Va Benefits
When we talk about VA benefits, what is most often at issue is VA disability compensation. Under state law, only marital assets are subject to division at divorce. Federal law is very clear that VA disability benefits are not a marital asset. That legal guidance is found in the Uniformed Services Former Spouses Protection Act , which exempts VA disability benefits from being considered marital property.
VA disability benefits are intended to compensate the veteran for his or her diminished earning capacity as a result of the disability. But while they are intended to help a disabled veteran, and while the benefits themselves are not property to be divided in divorce, that doesnt mean they are not relevant to the divorce.
VA benefits can be considered a source of income to the veteran. That means that they can be considered in calculations for alimony or child support. A 1987 U.S. Supreme Court case, Rose v. Rose, a veteran refused to make a child support payment, arguing that his VA disability benefit belonged to him alone.
The Supreme Court disagreed. It observed that while there is specific compensation available for the children of disabled veterans, the amount is so small that it does not make sense to conclude that Congress included that compensation to be all that the children of disabled veterans are entitled to. The Court concluded that one of the purposes of VA disability benefits was to enable the veteran to support his or her family.
Am I Eligible For Va Dic As A Surviving Spouse Or Dependent
As a surviving spouse
You may be eligible for VA benefits or compensation if you meet these requirements.
One of these must be true:
- You lived with the Veteran or service member without a break until their death, or
- If youre separated, you werent at fault for the separation
And one of these must be true:
- You married the Veteran or service member within 15 years of their discharge from the period of military service during which the qualifying illness or injury started or got worse, or
- You were married to the Veteran or service member for at least 1 year, or
- You had a child with the Veteran or service member
Note: If you remarried, you can receive or continue to receive compensation if one of these describes you:
- You remarried on or after December 16, 2003, and you were 57 years of age or older at the time you remarried, or
- You remarried on or after January 5, 2021, and you were 55 years of age or older at the time you remarried
You May Like: When Did The Disability Rights Movement Start