How To Fight Apportionment
After a decision is issued, either the veteran or the person filing for the apportionment can appeal VAs decision if they are unhappy with the outcome. Namely, the person filing for the apportionment can argue that the monetary amount decided on is too low to support their family. The veteran can appeal for a hardship reduction on the grounds that the apportionment will create a financial strain.
Can Va Benefits Be Considered As A Source Of Income In Awarding Child Support Or Alimony
Yes, although some states may have cases or statutes which exempt VA disability benefits. In Rose v. Rose , the U.S. Supreme Court reviewed a contempt judgment against a veteran whose sole source of income was his VA disability compensation. He had refused to pay $800 a month in child support, claiming that he was constitutionally allowed to keep these VA benefits for himself. In an extensive review of the statutes and rules governing VA payments, the Court found that these benefits are not provided to support appellant alone. It went on to state that:
- Veterans’ disability benefits compensate for impaired earning capacity, H. R. Rep. No. 96-1155, p.4 , and are intended to “provide reasonable and adequate compensation for disabled veterans and their families.” S. Rep. No. 98-604, p.24 . Additional compensation for dependents of disabled veterans is available under 38 U. S. C. ‘ 315, and in this case totaled $90 per month for appellant’s two children. But the paucity of the benefits available under ‘ 315 belies any contention that Congress intended these amounts alone to provide for the support of the children of disabled veterans. Moreover, as evidenced by ‘ 3107 , the provision for apportionment we have already discussed, Congress clearly intended veterans’ disability benefits to be used, in part, for the support of veterans’ dependents.
The provisions for dependents, found at 38 U.S.C. 1115, are:
What Happens After Someone Files For Va Apportionment
Importantly, if an individual is looking for apportionment of VA benefits, they will have to file a claim. That is, apportionment is not something that is going to be automatically granted. As mentioned above, family members must fill out and submit VA Form 21-0788, Information Regarding Apportionment of Beneficiarys Award. If the individual applying did not submit financial statements in support of their request, VA will begin the development process in which the department requests, obtains, and reviews such documentation. Specifically, VA will often request that both the veteran and the person filing for the apportionment submit evidence, if applicable. For example, a veteran might submit evidence showing that the apportionment would result in financial hardship for them. Conversely, the person filing for apportionment would need to submit documentation showing that the apportionment is necessary. Once VA has that evidence, it will issue a decision either granting or denying the apportionment, and that decision will also determine the amount of apportionment, if granted.
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How Garnishment Affects Louisiana Specifically
Non-taxable disability compensation has been falsely assumed to be a benefit only to the individual veteran, not their dependents. With the high divorce rates in Louisiana, the state encounters a lot of child support cases. This bill will force legislation to ensure the financial stability of a veterans family after divorce, regardless of the veteran’s emotional attachment to the family after. Of course, there is opposition to taking any earned wages from veterans, largely based on the idea that only those that serve deserve to reap the profits. Marriage and children, however, are a commitment. It is a parent’s duty to provide for their children and financially support their spouse.
I Agreed To An Amount Of Child Support Based On Disability Benefits That I Thought I Was Going To Receive But Never Got What Should I Do
You must return to court and request a modification of the child support order to reduce the amount of child support that you are ordered to pay. You must provide sufficient financial documentation to prove that your circumstances have materially and substantially changed before the court will consider a reduction to your child support obligation.
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How Garnishment Affects America Today
Recently in Congress, House Representative Kenny Cox proposed House Concurrent Resolution No. 7 which grants Congress authority to garnish veterans disability benefits to fulfill child support obligations. Under this bill, the United States will be able to garnish income to enforce child support and alimony obligations. This law is extended to disability compensation paid to veterans. According to The US Army, if a veteran waived part of their taxable military retirement pay to receive nontaxable disability benefits, their disability benefits can be garnished to meet alimony and child support obligations. In addition, a veteran with a 50% or more disability rating that was allotted 100% of their taxable retirement pay and non-taxable disability benefits is also subjected to garnishment to meet alimony and child support obligations. Legislators believe this bill will prevent veteran parents from escaping their financial responsibilities to their families. Once passed, Bill HCR7 would help ensure those families get the financial support and healthcare they continue to need after the divorce process.
When Can Va Garnish Your Benefits
VA provides disabled vets monthly compensation to improve their quality of life and sustain their families. If you fail to provide child support to your former spouse after a divorce, the administration may garnish some of your pay.
Another circumstance where VA may garnish benefits is if you have waived some of your military retirement pay to receive untaxed compensation. However, the amount they can deduct must not be more than the disability payments you get in place of a pension.
According to the Military Officers Association of America , veterans with a disability rating of more than 50% may qualify for concurrent retirement and disability pay . This means they do not have to waive one payment to receive the other. If you are eligible for CRDP, VA may also garnish your pay for child support. In this case, they will deduct from your military pension and not disability payments.
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Can Va Disability Benefits Be Used To Calculate Child Support
Yes, VA benefits can be used to calculate child support payments. Most states consider VA disability compensation as income, so these funds are considered when calculating child support payments.
If you want to know for certain, do an internet search to find out if your state includes VA benefits in its definition of income.
Military Retired Pay The Survivor Benefit Plan And Divorce
It makes sense that when a military retiree dies, their retirement pay ends. Unfortunately, a surviving spouse may still need those benefits to make ends meet. The good news is that there is an option for military retirees to protect a survivor from the loss of those benefits: the Survivor Benefit Plan, or SBP. In addition to protecting survivors from the military retirees untimely death, the SBP can also protect against inflation or the survivor outliving the benefits. How can an ex-spouse benefit from the SBP?
A military retiree who chooses to enroll in the SBP can choose varying amounts of coverage the more coverage, the higher the premium. The maximum SBP benefit upon the retired service members death is 55% of the designated base amount of their retirement pay. Upon retirement, the retiree can choose the base amount to be covered by the SBP. The designated base amount may not be greater than the full gross retired pay, nor may it be less than $300 per month.
The retiree may agree as part of a divorce settlement to designate a former spouse to receive coverage under the SBP. One important note: the retiree may only elect coverage for one spouse or former spouse. That means that a subsequent spouse could be left without coverage under the SBP. If a former spouse has been elected as beneficiary, the current spouse must be notified.
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When Va Benefits Can Be Garnished
Your VA benefits are protected from being garnished to pay unpaid taxes and most creditors’ claims, but in certain circumstances, VA benefits can and do get garnished. This is because the purpose of VA benefits is to provide support not just to a veteran, but to his or her family.
If you fail to make alimony and child support benefits, the state can sometimes order your VA benefits to be garnished. This can be done because Congress specifically set out in Title 38 that VA benefits are intended to be used to provide support for dependents. The amount that can be garnished will vary based on how many dependents you have to support.
However, your VA disability compensation cannot be garnished at all unless you waived part of your military retired pay in order to receive VA disability benefits. In other words, if you waived part of your taxable military retirement to receive nontaxable disability compensation, your disability benefits can be garnished to meet alimony and child support obligations. Only the amount of the disability compensation you were paid in place of retirement pay can be garnished. The remainder of your disability compensation is protected.
Va Disability Not Divisible As Marital Property
Finally, note the limitation on M.E.R.-L. While the case supports VA disability payments being included as income when determining child support or maintenance, those payments are still not divisible as property upon dissolution of marriage, and, as we addressed in a blog post last year, courts do not consider VA disability payments when dividing a marital estate at divorce.
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Disability Benefits And Marital Property
Disabled veterans who receive disability benefits and compensation will not lose half of their benefits as part of marital property division. TheUniformed Services Former Spouses Protection Act makes clear that disability payments are exempted from treatment as marital property. Therefore, these benefits are not divisible in a Florida divorce.
Can The Va Garnish My Benefits
The short answer is yes. The VA can garnish your benefits according to Title 38, which states that you must be able to support your dependents. On the flip side, your compensation cannot be garnished if you choose to waive a portion of your military retirement pay.
Lets say you choose to waive 25% of your military retirement to receive the non-taxed compensation. The non-taxed compensation that you received in place of your retirement pay can be garnished. The garnishment can also be used to meet alimony and child support. More on alimony and child support funds will be later discussed regarding apportionment. The remainder of your disability, however, will NOT be garnished.
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Is The Secretary Of The Department Of Veterans Affairs The Only Person That Can Attach To A Veterans Benefits
No thats wrong. This issue was litigated in Tennessee in the Rose case, and it went all the way up to the U.S. Supreme Court. The Courts ruling in 1987 was:
In fact, 42 U.S.C. 659 makes it clear that courts may attach VA benefits through garnishment if the individual has waived military retired pay to receive VA payments.
Garnishment Of Va Disability Benefits
Garnishment refers to the action of seizing funds from an individual to satisfy a debt, often by taking the money immediately through your source of income. In some instances, and mostly because a veteran has failed to pay alimony or child support, money can be garnished from his or her VA disability compensation. Usually, disability pay can only be garnished if the veteran has waived military retired pay, or a portion of their pension, to receive compensation for a disability. Only the percentage of compensation apportioned to disability pay will be considered for garnishment, and the percentage garnished usually ranges between 20-50%.
Garnishment can only happen once the ex-spouse has filed for apportionment, and it may be denied for a number of reasons, such as undue financial hardship on the veteran, or proven infidelity or living as a married partner to another individual.
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Veteran Benefits Are Protected From Creditors But Are They Protected Against Your Ex
Disabled veterans bravely served our nation, earning the right to receive VA benefits and income in the process. The question for some disabled veterans, however, is whether Florida law treats those benefits as marital property.
When Congress wrote the law on veterans benefits by way of Title 38 of the U.S. Code, the law was written with creditors in mind. Namely, veterans benefits were meant to be protected from creditors.Title 38 makes mention of an anti-attachment clause, which prevents ordinary creditors from garnishing VA payments or executing on them.
That said, family members are not your typical creditors. This is made explicitly clear in the U.S. Supreme Court case ofRose v. Rose. The court made it clear that the anti-attachment clause of Title 38 is not applicable to a court order requiring a veteran to support their family. As such, VA benefits are considerable as income when a Florida judge decides on the amount of support children and/or a spouse need.
Even so, there are important legal distinctions that must be made.
Can Disability Payments Be Garnished
Generally, disability payments cannot be garnished. This is true for Social Security Disability Insurance and Supplemental Security Income . The only exception to this rule is if the disability benefits are used to pay child support or alimony. In these cases, the payments can be garnished to make the required payments.
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Va Disability In A Divorce
When a military veteran has a service-connected disability, she may be entitled to receive VA disability payments from the Department of Veterans Affairs. There are several VA disability and divorce issues you should know, from whether any of the disability payments are divisible as marital property to how they are treated for purposes of child support and maintenance.
All veterans with a VA disability rating of at least 10% are entitled to VA disability payments, not just military retirees. However, should a retiree have a disability rating of under 50%, military retirement is reduced, dollar-for-dollar, by the amount of benefits received. So why waive retirement to receive disability benefits? Two reasons – first, VA disability payments are not taxable, and second, the payments are not divisible by a domestic relations court.
My Husband Beat Me At Every Turn In My Divorce Is It True As I Was Told By Several Lawyers That Judges Cannot Be Held Legally Liable For Their Decisions And Therefore There Is No Violation Of Law
No, not at all. Judges are held responsible for their decisions through the process of appellate review. This is an appeal to a higher court when a party believes she or he has been wronged because a judge at trial committed a prejudicial error. The higher court can correct the error. Judges are also subject to state codes for judicial conduct. When a judge acts improperly, a complaint may be lodged with the appropriate state agency for disciplining judges. A public reprimand, for example, was issued in January 2015 by the N.C. Supreme Court to a district court judge in In re Brenda Branch where the judge had failed to understand, recognize or comply with the Servicemembers Civil Relief Act in a custody case involving a sergeant first class who was in Korea and could not attend the hearing.
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Tricare Benefits In Divorce
If you are a service member or military spouse, you are already very familiar with Tricare, the military health insurance plan, and you may know something about the 20/20/20 rule. The rule is called that because military spouses who have been married for at least 20 years to a service member who has completed at least 20 years of service, with marriage and service overlapping by at least 20 years, get to keep the majority of Tricare benefits after divorce.
To be specific, you keep your Tricare health coverage, but not your dental coverage. No matter how long your marriage, your spouses service, or the overlap, your dental coverage terminates as of the last day of the month in which your divorce becomes final. However, you will retain insurance for medical care, prescription medication, and vision coverage
What about military spouses in long-term marriages where the overlap between the duration of the marriage and the length of service is not quite 20 years? It does seem unfair that spouses who do not quite meet the 20/20/20 criteria should lose all their health benefits in divorce. To avoid the abrupt cutoff, certain spouses are eligible for transitional benefits in divorce. If the marriage overlapped service by at least 15 years, the military spouse can receive one year of continued Tricare benefits after divorce.
The Prior Court Order Was Entered By Agreement It Expressly States That My Ex
Not by a long shot. All the VA money is tax-free, so he would get even more money in the end by waiving a piece of the pension.
Lets take an example: Suppose Johns total retired pay is $1,600 and the court awards Mary, his former wife, 50%, or $800. Then John obtains a VA disability rating and elects to receive VA disability compensation, which equals $600. This means that he waives $600 of the pension to receive VA payments.
Now the pension-share payment from the retired pay center to Mary is only $500 a month instead of $800 . Shes short by $300 due to the actions of John in applying for VA payments.
Johns income is now $500 from the pension and $600 from VA. If hes paying taxes at 20% federal, 5% state, then hes receiving net: $375 from the pension and $600 from VA, for a total of $975, while Mary will only be getting $375 a month.
If John were to reimburse Mary, then hed pay to her the missing $300 each month, which is deductible for him on his taxes, and that only costs him $225 in his tax brackets. Thus he still has $750 after taxes, whereas before the VA waiver, he was receiving $800 taxable each month, or $600 after-tax income! And Mary has the full amount which the court initially ordered.
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