Should divorce courts take into consideration a veteran’s disability pay when awarding spousal support?
In most states this happens. Total income is considered when awarding alimony. However, Arizona recently passed a law that does not allow VA disability benefits to be considered.
Peter Barclay, who recently went through a divorce with his wife of twenty years, wants the Supreme Court to consider this question. He lives in Oregon, and the court awarded his wife support based upon the total of his VA and Social Security disability benefits. The Court has not yet decided whether to review the case.
The Standard Examiner reports:
Will justices review how states treat veterans’ disability pay?
Barclay argued at trial that to include his disability pay in calculating spousal support would violate federal law. The court ignored that argument and the Court of Appeals of Oregon affirmed its decision.
His Washington D.C. attorney, Michael D.J. Eisenberg, this month petitioned the Supreme Court to consider whether Title 38 U.S. Code, Section 5301(a), which makes VA disability benefits immune “from taxation, claims of creditors, attachment, levy and seizure,” doesn’t also bar inclusion of disability pay, directly or indirectly, in spousal support calculations.
Barclay’s spouse worked at home to raise their children, who are now adults. Barclay contends that he is the one who is disabled and not her. He believes that she should be able to get a job to support herself. She says that she also has disabilities. Since she did not work outside the home while her children were growing up, the amount she could receive from applying for her own social security disability would be limited.
Widespread Effects of a Court Decision
There are many issues to consider in each individual situation of divorce. That is what divorce courts are supposed to do – consider all the issues and make a fair determination. If the Supreme Court would rule in Barclay’s favor, this would have a national effect on all spouses who have been awarded support based upon disability income of their ex-spouses, regardless of individual situations.
Please comment and tell us what you think.