Is VA Compensation Used in Spousal Support?

The US Supreme Court may consider whether veteran’s disability benefits should be included when calculating spousal support during a divorce proceeding. Traditionally, nearly every state refuses to follow the current federal law.

Every state the union, with the exception of Arizona, works against federal law by allowing veterans benefits to be included in the calculation of child support and spousal support payments upon a divorce. The decision to violate the law is based on the 1987 Supreme Court’s Rose decision that claimed that VA disability benefits, according to legislative history, are intended to provide compensation to both the veteran and members of his or her family. As a result, various states have developed their own interpretation of exactly how disability benefits can be divided during a divorce and claimed as marital property.

A Supreme Court Consideration

Recently, a disabled veteran asked the United States Supreme Court to look at how, or if, individual states are violating federal law concerning veteran’s disability benefits. He hopes the court will consider it a violation to take into account veteran’s compensation for their disability whenever the state calculates spousal support.

The filed petition wants a clarification on a federal law that bars individual state courts from taking VA disability benefits into consideration as communal property that can be split during a divorce.

The Federal Law

Under Title 38 U.S. Code, section 5301(a), federal law finds VA disability benefits are immune from “taxation, claims of creditors, attachment, levy and seizure”. The petition asks for consideration if the law does not also bar the inclusion of the veteran’s disability benefits either indirectly or directly when calculating the spousal support of the non-disabled spouse.

Spousal Benefits Should Cease

It is the belief of the petitioner that the veteran’s disability pay from the US government is provided as a compensation for their loss of income. The veteran’s lack of income is a direct result of a medical condition connected to their service. Any portion of the benefit that is used to compensate the spouse for living with the disabled veteran’s condition should supposedly cease once the divorce is final. Therefore, the spouse would not be entitled to any disability benefits because he or she no longer lives with the veteran.

In 1982, the Uniformed Services Former Spouses Protection Act (USFSPA) was passed. It allowed the court system to recognize any military disposable retirement pay as a marital asset that could be distributed, including child support and/or alimony. However, the petition claims that the federal law specifically excludes any compensation provided for disabilities from being included and divided as a marital asset.

Hopefully, the court will address how numerous states have their own interpretation and offer clarity to the law in favor of the disabled veteran.

By Kenny Leigh

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