VA disability

Get financial tips on divorce and asset division including child support laws, property division, and divorce settlements.

VA disability

Postby blair » Tue Aug 31, 2010 6:58 am

This is my first post, wish I didn't have to but its out of my hands. My soon to be X and I make about the same amount of money, except for the VA disability payment I get for my time in Iraq. Is VA disability considered marital property and considered in Alimony and Child Support? Any help would be appreciated. I live in North Carolina by the way.
blair
10+ Posts
 
Posts: 26
Joined: Tue Aug 24, 2010 6:56 am

Re: VA disability

Postby ivyalmighty » Tue Aug 31, 2010 10:02 am

Child support and alimony are two separate issues. In considering what income can be used to calculate child support:

http://info.dhhs.state.nc.us/olm/manual ... EcP-10.htm

For Child Support:
Only if you waived a portion of retirement benefits in order to receive the VA disability amount.
"Veterans' benefits are subject to attachment through garnishment or income withholding only when the veteran is eligible to receive military retired/retainer pay and has waived a portion of the retired/retainer pay in order to receive disability compensation from the Department of Veterans' Affairs. Veterans' benefits are a disability payment, not unlike Social Security disability and SSI. A retired veteran’s retirement is paid by the Department of Defense, not the Department of Veterans' Affairs. That portion of the VA benefit received in lieu of retired/retainer pay is subject to garnishment or income withholding."

For Alimony:
The VA disability cannot be considered an asset/property to be divided between the two of you, like you might divide the 401k or house equity... but it CAN be considered income for you in determining the amount of $$ you have available to pay for alimony.
-Ivy
ivyalmighty
500+ Posts
 
Posts: 851
Joined: Fri Apr 06, 2007 10:30 am
Location: VA FAMILY/NC CHILD

Re: VA disability

Postby haikii » Fri Mar 04, 2011 5:23 pm

blair wrote: Is VA disability considered marital property and considered in Alimony and Child Support? Any help would be appreciated. I live in North Carolina by the way.

Perhaps this… the protection of VA disability from alimony?
=
38 USC 5301 is the protection of VA disability compensation against alimony awards to third parties. Although they contribute to the problem, state court judges, lawyers, and state legislators see only what they want to see. Make judgments according to precedent, the easy route, “stare decisis”, Rose v. Rose, and their misrepresentation of Administrative law, 42 USC 659. Helping this process along is the Veterans Administration policy. Rubber stamping each state court garnishment order without thought or questioning. Disregarding the rules of Compliance With Process procedure. “The governmental entity shall comply with legal process, except where the process cannot be complied with because: ..” The “because” to all this follows.
=
General counsel Department of Veterans Affairs before the House Committee on Veterans Affairs. Mr. Thompson speaking on the subject at hand states , “The sole exception is that VA compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.”
=
Mr. Thompson continues, “VA benefits, including even disability compensation received in lieu of retired pay, are also protected by Federal law from court-ordered divisions of property upon veterans’ divorces. However, The United States Supreme Court ruled in Rose v. Rose 481 U.S. 6219(1987) that state courts are not precluded from setting child support obligations at such levels that veterans would necessarily have to use some of their disability compensation to meet them.”
=
VA compensation can be garnished only if two (2) conditions exist, to satisfy court ordered, (1) child support and (2) alimony obligations. The “sole exception” Not one(1), but two(2) conditions.
=
“The interpretation of the General Counsel on legal matters, contained in such opinions, is conclusive as to all VA officials and employees, not only in the matter at issue, but also in future adjudications and appeals involving the same legal issues, in the absence of a change in controlling statute or regulation or a superseding written legal opinion of the General Counsel.”
=
“VA monetary benefits, entitlement to which is generally based on either the veteran’s disability and wartime service (pension) or disability from service-connected injury or disease (compensation), is generally not considered remuneration for employment.”
=
42 USC Section 659. Consent by United States to income withholding,… for enforcement of child support and alimony obligations. Reading further on, worded as, “(i)(5)(B), to provide child support or make alimony payments”, “(e) child support or alimony”. Why child support or alimony? To cover all conditions of a veteran’s activity, such circumstances in retirement or employment, in order to carry out court ordered alimony judgments in garnishing retirement payments, military pay, assets, etc., classified and based ….as remuneration for employment. “Remuneration” conditions having absolutely nothing to do with a veterans’ disability compensation. A disabled veteran, having no child support issues, is receiving disability compensation not based on remuneration for employment, therefore not subject to garnishment.
=
“The test to determine if a payment is subject to garnishment is whether the payment is remuneration for employment as defined in section 459 [42 U.S.C. 659(a) and (h).“You will see that in 659 (V) they are talking about retired or retainer pay where “..the entitlement to which is based upon remuneration for employment”
=
“(h) Moneys subject to process
(1) In general
Subject to paragraph (2), moneys payable to an individual which are considered to be based upon remuneration for employment, for purposes of this section -
(V) by the Secretary of Veterans Affairs as compensation for a service-connected disability paid by the Secretary to a former member of the Armed Forces who is in receipt of retired or retainer pay if the former member has waived a portion of the retired or retainer pay in order to receive such compensation;..”
=
TITLE 5--ADMINISTRATIVE PERSONNEL CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT PART 581
_PROCESSING GARNISHMENT ORDERS FOR CHILD SUPPORT AND/OR ALIMONY --
Honoring legal process.
(a) The governmental entity shall comply with legal process, except where the process cannot be complied with because:
(2) The legal process would require the withholding of funds not deemed moneys due from, or payable by, the United States as remuneration for employment;
=
What have these laws taught us? That disability compensation is not.. retired or retainer pay. Therefore not.. remuneration for employment compensation. That the VA’s mandate ignores compliance with its legal process, and illegally continue to complying, and processing state court ordered judgments outside the guidelines of federal law.
=
You can argue these points with the state court, hoping that they will be persuaded. If not, the garnishment process goes forward. The only thing now is to, writing a formal letter, bringing this to the attention of the VA , the federal financial department, that is responsible for following up on garnishment orders from a state court.
=
If adjudication of state court orders is disregarded by formal documentation by the VA, now is the time to file a “notice of disagreement” (NOD) with the VA. Most likely they will reply denying your claim. Your next step is the courts. First filing an appeal by the Board of Veterans Appeals (BVA) where they will, because they work for the VA, also rule against you. The next step would be the United States Federal Court of Appeals for Veterans’ Claims, who do not work for the VA. This court does not argue against what has been the ruling, but instead look for violations of federal statutes, or laws.
=
If there is no “child support” issue, in a case where federal laws have been violated, if you have never done this, as I found it in another matter, it is fairly easy, almost simple, adhering to the reasonable time limitations. The problem is, it takes a long time, first in one court and then the next. But in order to resolve this issue you have to start.
=
Good luck!
haikii
New
 
Posts: 8
Joined: Fri Oct 31, 2008 1:39 pm

Re: VA disability

Postby whatdidido » Sat Mar 05, 2011 11:39 pm

A lot of good info here, but just a simple answer is, not only yes, but hell yes your VA disability can be used by the courts as marital money.

I say this because, I too receive a VA disability benefit and the courts did not give a damn that this should be money not touched, but when they added the (here is the key) marital money I made, the VA portion was just added in with the rest of the money I make from my job and the percent for child support and maintenance was figured out using that money.

Does not matter, if its part of your marital money, they will use it.
whatdidido
10+ Posts
 
Posts: 18
Joined: Sat Feb 12, 2011 11:58 am

Re: VA disability

Postby haikii » Sun Jul 08, 2012 2:31 pm

whatdidido wrote:A lot of good info here, but just a simple answer is, not only yes, but hell yes your VA disability can be used by the courts as marital money..


Give this some thought.
INFORMATIONAL COMMENT

A disabled veteran when returning home may face one of their toughest battles, facing a judge in divorce court trying to keep his or her VA disability compensation from being awarded as alimony.

The statute which disabled veterans’ rely on is 38 USC 5301. Nonassignability and exempt status of benefits. "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,.. 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.

As read, 5301 it is quite clear. But when a disabled veteran appears before a judge and opposing attorneys, tried is every interpretation of law possible to win judgment and secure as alimony award a veteran’s disability compensation. What about child support? Should the veteran be responsible for that? Many veterans have argued 5301 exempts child support as well. The initial focus however, being on those veterans” not having child support as an issue, but this evolves later.

Opposing lawyers, activist state court judges and the ex-spouse, their arguments rely on states rights, stare decisis, forum shopping, contract law, etc., and finally almost in all of these cases, the courts will rely on Rose v. Rose. A disabled triple amputee veteran, blind in one eye, requiring constant care, Charlie Wayne Rose, was sent to jail for failing to pay alimony and child support. Released after a short period when he agreed to relinquish his disability compensation for child support.

However, in support of alimony only, having no child support issues, divorce courts, judges, lawyers, most always refer to Rose v. Rose, a child and alimony support case, because it’s available, convenient and will prevail. New Hampshire, Brownell v Brownell, “Lower courts have repeatedly implemented Rose, and an “overwhelming majority of courts” have held that veterans’ disability payments may be considered as income in awarding alimony.” Brownell was not a child support issue, but you did notice, the opposing lawyer managed to bring up Rose v Rose which was a child support issue. Brownell, of course lost a portion of his disability compensation as alimony.

But this is not how the VA General Council John Thompson had interpreted the Rose case. 8/4/98 testimony of Congressional and Legislative Affairs statement of John Thompson, acting General counsel Department of Veterans Affairs before the House Committee on Veterans Affairs. Mr. Thompson speaking on the subject, disability compensation may be attached. In clarifying for the VA, its legal definition, stating, “The sole exception is that VA compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.”

Mr. Thompson then states, “VA benefits, including even disability compensation received in lieu of retired pay, are also protected by Federal law from court-ordered divisions of property upon veterans’ divorces. However, The United States Supreme Court ruled in Rose v. Rose 481 U.S. 6219(1987) that state courts are not precluded from setting child support obligations at such levels that veterans would necessarily have to use some of their disability compensation to meet them.”

Veterans Administration counsel Mr. Thompson’s explanation of “sole exception” is exactly what it is, which involves two (2) conditions… before “VA compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.” Two (2) conditions, child support and alimony. For those disabled veterans’ having no child support issues, this is not that “sole exception.” The courts in many cases do not make any exceptions .

A defense in protecting a disabled veteran’s compensation is available, that of “due process”. As well as mentioning other claims, which as you read exposes the VA’s lack of oversight of the it’s rules and regulations and exposes the illegal state court rulings interfering with VA medical procedures regarding disability compensation which has led to “clear and substantial” major damage to federal interests.

State court rulings awarding disability compensation are routinely processed by the VA, the governmental entity, in spite of 38 USC 5301, and VA General council’s precedential interpretations, VA regulations, laws on the books, and the many years of disabled veterans complaints.

“Clear and substantial” major damage to federal interests occurs when state court activist judges make lasting decisions, partly based on Rose v. Rose, that seriously impact disabled veterans’ rated compensation and complicate Veterans Administration goals, and resonsibilities. Upsetting, by overruling VA medical compensation decisions, which involve many hours of work that VA medical professionals have invested in the medical care, control, follow-up, and rehabilitation of disabled veterans. All this happens with VA complicity, when a state court, arbitrarily is allowed to take away a veterans VA disability compensation in third party alimony awards in violation of….. 38 USC 5301. Nonassignability and exempt status of benefits, and…. 38 USC 1155 Authority for schedule for rating disabilities. “However, in no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred.” 42 USC § 407 - Assignment of benefits, carries similar language.

Reduction in disability compensation cannot be “reduced unless an improvement in the veteran’s disability is shown to have occurred.” When processing a reduction order, the VA would be violating the regulation 38 CFR 3.105 (e) when no medical evaluation has been ordered showing any physical improvement.

To a veteran his total disability compensation payments is contingent upon what VA medical professionals determined the disabled veteran injuries should be compensated for. Forgetting for the moment, any rating system, to the veteran who loses any portion of his disability compensation payments, he has been unlawfully downgraded and now any disability rating is totally meaningless. What happens to a veteran’s health and well being are now in jeopardy to many, many disabled veterans‘. A “cause and effect” situation.

Where is it written, the VA authority, when a state judge can arbitrarily overrule the VA, the VA medical doctors and other medical professionals’ that determine a veterans’ medical rating? His future now without the compensation that was by law assured?

Which brings up “due process”. How is it, that state court judges can arbitrarily and capriciously award as alimony, with the mere wave of a hand waive away a portion of a veteran’s VA disability rated compensation, moneys in the form of disability compensation, the disability rights of a veteran, whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same? Activist state court judges, are in reality, playing doctor, without medical license or knowledge .. a practice forbidden, providing penalties by law , and border on medical negligence. All without any input, or approval from the Veterans Administration, overstepping those whose authority it belongs, the dedicated VA medical professionals, in the practice of medicine, re-evaluation, and rehabilitation of the veteran. While at the same time violating federal law, 38 USC 5301, 42 USC 1408.

This follows the ACLU position taken in “Federal Court Hears Arguments In Case Defending Transgender People’s Right To Access Medical Treatment in Prison.” Feb 7, 2011. ACLU And Lambda Legal Argue That Doctors, Not Legislators, Should Determine Medical Treatment.
“We hope this court will affirm the principle that is so important to all of us – doctors, and not legislators, should decide what medical treatment is critical for their patients.”

State court judges may have adjudicated “due process” in income support distribution, divorce finalized and ended. However, this is only one part of two (2) separate “due process” issue proceedings. This is not just a one “due process” fits all situations, as state court judges may want you to think. When a veterans disability compensation is court ordered as part of any support distribution, before that “consideration” of any VA connected disability compensation, as part of any alimony award, there is a separate “due process” right, to fair adjudication of a veterans’ claim for disability compensation benefits. This has never been done. Entitlement to benefits is a property interest protected by the Due Process Clause. To allow what has been happening, was it the intent of Congress that state court judges substitute their judgment for the judgment of VA doctors and medical professionals? I don’t think so!

As you can surmise from what you have read, this is an issue involving veterans’ from every state, and the solution to this problem can only be solved on a federal level. The consequence of state court judges in substituting their judgment, and the resulting “due process” is that it takes on the issue of child support, and the reality that disability compensation is then exempt in both alimony and child support. Perhaps’ that’s the way Congress had intended it to be? After all 38 USC 5301 is quite clear.

PHILIP E. CUSHMAN, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, August 12, 2009.

http://linehanpc.com/vadisabilityclaim/ ... nseki.html

“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”

Just to be clear, many states do observe and respect federal law 38 USC 5301. Two cases not involving child support. California, Piner v. Piner, the judge had respected federal law and disallowed the use of a veteran’s disability compensation to be used as alimony. However, the judge gave him an ultimatum, forcing the veteran having to use his disability compensation in alimony support, by a set-off or assignment … or go to jail! To put it in prospective, the state court judge refused to violate federal law, but expects the veteran to violate that same law. New Hampshire, if Ronald Brownell, should refuse to hand over his disability compensation as ordered by the court, the judge would hold him in contempt of court, and can be ordered to jail. If, instead Brownell was forced to pay alimony reluctantly by the threat of jail time, he too, will violate federal law 38 USC5301, “Nonasignability and exempt status of benefits.” This would end with “due process”.

Did Charlie Wayne Rose, the severely disabled veteran, mentioned earlier, have this “due process”? I can find no mention of it in case documents available.

In conclusion, our disabled men and women veterans, both returning and those having served in Afghanistan, Iraq, and past wars endure facing both the emotional and physical issues of unemployment, future uncertainty, suicide, PTSD, and rehabilitation. For many, are years of facing a far greater emotionally charged setting, a divorce court battle. Financially and psychologically draining, fighting for the right to keep their earned VA disability compensation, against court room rulings that fail in their duty to advise and observe its duty to procedures of due process rights, and the court’s proper place in a medical decision over the rights due a disabled veteran.

A decision by the courts in favor of veterans ‘due process” rights would forever settle once-and-for-all something that disabled veterans have been waiting for many years to confirm, 38 USC 5301 means what it says.
haikii
New
 
Posts: 8
Joined: Fri Oct 31, 2008 1:39 pm


Return to Finances & Divorce Forum

Who is online

Users browsing this forum: No registered users and 10 guests