If you live in a state that recognizes community property, then you may be wondering about the fate of your VA disability payments in the event of a divorce. In the states of Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin, any money earned during marriage is generally considered community property that belongs equally to both spouses. Even some other states have a modified community property rule. However, a federal law specifically carves out an exception for VA disability payments, which may not be considered as community property during a divorce or probate proceeding.
VA Disability Is Not Community Property
The Uniformed Services Former Spouses’ Protection Act, or 10 U.S.C. §1408, prevents VA disability payments from being divided upon divorce. This federal law effectively prevents state courts from considering VA disability to be community property–even if state law might hold otherwise. But your disability payments may still be affected by a divorce, even if they are not strictly speaking community property.
Many veterans believe that the “anti-attachment clause” of 38 U.S.C. § 5301 shields their veterans benefits from all creditors and judgments, but this is not true when it comes to actions for divorce or child support. In 1987, the United States Supreme Court specifically ruled in the case of Rose v. Rose that the ant-attachment clause did not extend to court orders requiring the veteran to support the family.
Your Disability Compensation Counts As Income for Determining Alimony and Child Support
Therefore, a court may consider your VA benefits when determining how much child support or alimony you must pay. The issue of your disability benefits being tax exempt is irrelevant. In general, the divorce court may consider all of your wages, rents, royalties, military retirement pay, disability benefits, combat pay, social security disability, and even any inheritance when calculating your alimony and child support payments.
However, your VA disability payments are generally protected from garnishment should you fail to pay your child support or alimony. An exception applies if you have a disability rating of less than 50% and have waived part of your military retirement pay in order to receive disability benefits. In this case, a court can order the garnishment of the portion of disability pay that is replacing your retirement pay. In general, not more than 50% of your disability compensation can be garnished.
How A Veterans Benefit Lawyer Can Help You
At Jackson & MacNichol, we help disabled veterans get access to the benefits they deserve. If you have applied for disability compensation, and have received a denial or an unfairly low disability rating, we can help you appeal your case. By advocating for your interests at every stage of the process and deploying effective legal strategies on your behalf, we can increase your chances of obtaining compensation for your disabilities. For a free consultation about how to appeal your disability claim, call us today at 1(888) 492-2941.
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