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  • Should Veterans’ Disability Pay Be Used for Alimony?

    by karen on 05/24/2012

    divorceShould 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.

    Read more at:  http://www.standard.net/stories/2012/05/23/will-justices-review-how-states-treat-veterans-disability-pay

    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.

    { 9 comments… read them below or add one }

    haiki June 15, 2012 at 8:47 am

    The following is another view of exactly how disabled veterans’ have been manipulated by state courts’ to forcibly take hold their earned disability compensation.

    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. I’ve been at this very problem for many years in finding a solution. I joined in when a disabled veteran who put out a mayday call to veterans for help in protecting his VA disability compensation.

    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 divorce court judge and the opposing attorneys, they will try every interpretation possible to win judgment and secure as alimony a veteran’s disability compensation. You are probably thinking, what about child support? Should the veteran be responsible for that? Yes, I thought. But early on, I understood their argument because of what the law states. However, I was not getting into the child support issue, did not see any solution. My focus was those veterans” not having child support as an issue.

    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 .

    For those cases not involved with child support, I recently suggested a defense of the disabled veteran’s compensation issue. Two disabled veteran’s have had enough and asked for help. They made this very claim. One in a letter to VA Secretary Shinseki, 3/29/12. As well 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. A second veterans’ letter 5/25/12 was to the ACLU.

    State court rulings awarding disability compensation are routinely processed by the VA, the governmental entity, in spite of 38 USC 5301, and VA General councils 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. 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 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.

    A question presented to Secretary Shinseki, 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 other questions, how is it that state court judges can arbitrarily and capriciously award as alimony, 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.

    State court judges may have adjudicated divorce support having “due process” in the distribution of income, however, this is only one part of two (2) separate “due process” issues in divorce proceedings. This is not just a one “due process” fits all situations, as state court judges may want to think. When a veterans disability compensation is court ordered as part of any alimony distribution, before the “consideration” of service 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 not been done. Entitlement to benefits is a property interest protected by the Due Process Clause. To let this happen, 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 “due process” is, that it takes in 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 as to its meaning.

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

    http://linehanpc.com/vadisabilityclaim/cushmanvshinseki.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.”

    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.

    Reply

    admin June 17, 2012 at 8:17 pm

    Thanks for the detailed disability related issue you’re bringing up regarding the disabled vets. I am certain your message will help others bit time.

    Reply

    Hmmm August 5, 2012 at 4:01 pm

    This is pretty close but the Rose v Rose case did not award Spousal Support. It ONLY provided child support. Both Mansell v Mansell and Rose v Rose agree. In a way the court was making it very clear, the line is drawn between children and an ex-spouse. The veteran gets money for them self and then money for each family member defined by law. So when Rose was divorced, the Tennessee court appeals even agreed in their statement, when you are getting divorced it is the legal separation of a spouse from the veterans family. That is why the payment for the spouse is not paid to a veteran by the VA on the date of the divorce. After that they aren’t family any more, the veteran doesn’t have a spouse so they don’t get a payment for a spouse. If the ex-spouse is needing assistance, it is their job to go apply for public assistance.

    Imagine if a married couple with kids were getting food stamps. The food stamps are awarded to an individual plus their family members. If one spouse leaves (regardless if it’s the man or woman) then the situation has changed and the benefits change. One person still has the original card and the food stamp people only give food stamps for them and the kids that stayed with them. It’s then up to the other person to go get their own card for themselves and the kids that live with them. It’s a pain in the butt but its called paperwork and everyone hates it. They wouldn’t keep giving food stamps to the one person and then make the court split up the money. That’s ridiculous and a waste of court time.

    People don’t like to think of veteran disability payments as welfare but that is basically what it is. Soldiers are legally separated by law from civilians and even if you get out of the service you don’t become a civilian, you become a vet and still legally segregated. They can’t apply for food stamps, HUD, welfare or anything like that. Those are “civilian” programs. They can only get veteran benefits. Some people will say the veteran disability is a lot of money and others will say they have very few programs for veterans. There are 1600 civilian public assistance programs and veterans only have 20. That’s because instead of making a million different programs for veterans they wrapped it up into one program: welfare, food stamps, HUD and others in one payment.

    When the courts are taking money from a veteran after the VA stops paying them for a spouse they are basically saying, the ex-spouse is less of a person and shouldn’t have to go apply for their own benefits. We would rather just punish the other person and take theirs away. I’ve seen cases where the court takes the vets payments and cases where they don’t. In one case the court takes about a grand or so from the vet and gives it to the ex spouse. I watched that ex-spouse apply for HUD, welfare, TANF, food stamps and all kinds of programs and they were denied because they got the money from the veteran. Then I watched another case, where the court gave the ex-spouse nothing. That person got college grants, welfare, TANF, HUD and all kinds of stuff. While we were talking we decided to add it all up. All school tuition, fees, books and supplies were paid for in full. Then on top of that the cash value of their food stamps and HUD and other stuff came out to $2,000 a month. They were basically guaranteed to get paid $2,000 a month for 4 years to get their bachelors degree. So when the court is taking the veterans assistance and giving it to the other person, they are actually hurting both parents and all the kids. And they say they are doing it to protect the kids. If you think it’s because they are trying to reduce the amount of money the State has the fork out in public assistance that actually backwards. All of the programs are federal. That means new federal money coming into that state economy. So the courts are hurting veterans, their kids, ex-spouses and the state and everyone else too. Way to go morons. If they were so smart they would look at the whole picture.

    Reply

    Vic August 26, 2012 at 2:26 am

    I wouldnt use the word Morons in this case as you forgot to mention TANF and other WELFARE in some states is limited to three years lifetime. So your point is a quick flashed single moment in time picture of poverty for the veteran’s family that is probably not going to meet their needs anyway vs the responsibility a parent has, veteran or not, toward his children?

    What we forget here is the safety, wellbeing, and dignity of the veteran’s family.

    Im confused with your statements about welfare, VA disability compensation is not welfare. As for the food stamp example, I am pretty certain, they count the family income regardless if the other parent isnt in the home. This is why child support and alimony is so important. These families are in a catch 22 situation….although my spouse volunteers support for the children and I, and our income is probably considered low for us, I cannot qualify for things such as a school bus ride without having to pay because until a legal separation whatever my spouse takes is counted against the family.

    Reply

    Vic August 26, 2012 at 2:05 am

    Shall we forget that nothing is black and white. The disabled veteran in our family abandoned us, with several young children and one disabled. He had been cared for by the spouse for more than a decade and even went to asking the spouse to leave her career behind to stay at home and care for everyone. I ask, is it right for him to walk away with compensation allocated to him in lieu of his past ability to work, money awarded so he may care for himself and family.

    I ask, how much greed do you think a man should possess so that he may enjoy benefits not fully awarded for his own personal use, to start a new life, find a new woman, and or indulge in potentially wasteful habits, all the meantime his legal family can’t make ends meet, borrows to stay afloat, and are unsure of their future.

    After 20 years of marriage and an agreement between spouses to stick it out till the end, someone says “tuff things change” well I had three kids at home and more and more veterans are thinking they can be irresponsible people / parents, and what more.

    I hear the outcry of veterans who want to keep all their “ungarnishable” money…. I can understand when they make mistakes in life, but if we dont forget widows, why should we forget the wives with the children who also need help.

    A change of heart doesnt send children back to spermhood, so goes my lost ability to make a living. Can I go back to school, maybe. Remember, I still have a disabled son to care for.

    As my husband said “the good that came out of our relationship were the kids” then he said : I’m only helping you for a couple of years find a way to support yourself.

    Final comment, he left me because I became sick. I have been out of real work since 2001 when he became disabled and I had my last child.

    I know not all cases are similar I understand

    Reply

    Elaine November 9, 2012 at 12:37 am

    I am glad that you wrote your comment. It tells my story. I have not received ANY support since my husband went on a drinking binge and became dangerous to me and his three children. He is rated 100% service connected disabled. I am getting nothing….We had our first daughter almost 40 years ago…I struggle not getting support because the VA doesn’t seem to recognize me even with a marriage certificate. No spouse support, no child support (daughters are all three now grown) and I am disabled from a vehicle accident where another car lost control in 2000 and hurt me. What is a wife to do? I love my husband and understand why he is missing. He is really hurt from Vietnam. There must be some way to get help. It is also difficult to understand why he is not required to give me spouse support (at least)! I raised, by myself with tremendous challenges, all three girls into womanhood–and into successful marriages. Now, alone, I am being mother and grandmother/grandfather (both) without help. I am VERY POOR and can’t seem to figure this out. I went back in to apply for support again and they said it would be about a YEAR or more before I could see what the VA says! I have asked over the years for help and they say that even though I, myself, am fully disabled, I cannot get money from him. (What happened to wives getting supported by their husbands? and children being supported by their father?)

    Reply

    Doug October 3, 2012 at 4:17 am

    I just went through a divorce court hearing in California for alimony. I was active duty for 9 years 11 months during an 11 year marriage. I received military retired pay and a separate VA 80% disability compensation pay. The judge said, since I initiated the VA claim and it wasn’t from injuries sustained in combat, that my VA disability compensation can be used as income, along with the other part of my retired pay that the spouse was not awarded (she got 25% of my retired pay also), and divisible for alimony. I did not have money for a lawyer and the spouse did. Does anyone have any advice? All my research seems to point out that judges can rule whatever they want to. Thank you.

    Reply

    William March 4, 2013 at 12:14 am

    “No state shall…deny to any person within it’s jurisdiction the equal protection of the laws.”

    Doug’s case is a perfect example of how these California activist state court judges disrespect veterans. What this judge is saying, is that if Doug had received his disability during combat the court would not have awarded his disability compensation as alimony. No way that would happen! This judge is arbitrary, capricious, unreasonable, and making up law as he goes along, showing just how deep his contempt for veterans is. There is no requirement in either state law, Veterans Administration regulations or Title 38 (veterans law), that because Doug, being disabled, had not sustained his injuries due to combat he is not qualified to claim any exemption of disability compensation from alimony award.

    The Fourteenth Amendment to the United States Constitution says that no state shall deprive a person of life, liberty, or property without due process of law. The right to due process is actually two separate guarantees: procedural due process and substantive due process. Doug had neither.

    The question, why is Doug a California disabled veteran who served his country honorably, not treated with the respect that is due according to California law? The only answer, this judge is (1) ignorant, and therefore (2) incompetent to serve as a qualified judge.

    “Sacramento, October 11, 2009: CAFC is announcing another victory for military service personnel and veterans. Today Governor Schwarzenegger signed into law SB 285, a bill to protect disabled veterans disability compensation from illegal attachment and garnishments:”.

    THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. “It is the intent of the Legislature to enact legislation to conform to existing federal law, which provides that payments or benefits due to a veteran for a service-connected disability shall be exempt from creditor claims, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process. SEC. 2. Section 483.013 is added to the Code of Civil Procedure, to read: 483.013. Notwithstanding Section 483.010, federal disability benefits awarded to veterans for service-connected disabilities pursuant to Chapter 11 of Title 38 of the United States Code 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 whatsoever, as provided by federal law. This section does not apply to that portion of service-connected disability benefits that are subject to child and spousal support enforcement under Section 659(h)(1)(A)(ii)(V) of Title 42 of the United States Code.”

    Reply

    Simon Alvarado March 25, 2013 at 2:04 pm

    You might want to re-visit USC 42 section 659. The part that most people miss is there it states that income that remuneration as income is excluded from child support and alimony. You also have to understand that USC 42 conflicts with its own definition of what it refers to. Look for a MEMO from the US DHHS on this issue dated in 1998, I believe. If you want a copy ley me know and I can email you a copy.

    Reply

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