When military benefits are discussed in the process of a divorce, it is important to consider how federal law affects the state’s division of military benefits. This is specifically true for VA benefits. There are many state laws and federal laws that govern the division of marital property and military benefits. Therefore, it is crucial to properly understand how these VA benefits are categorized and can attribute to your divorce proceeding. If you or your spouse is a military member with VA benefits, discuss how these benefits may be assessed in your unique situation with your divorce attorney.
Much of the confusion regarding VA disability payments is the interaction between State and Federal Law. Although, certain items such as retirement, pensions, or other benefits may be considered marital property under Florida State law, state law is subordinate to federal law. Therefore, it is important to first consider the Federal law on the topic of VA benefits.
The Federal government seeks to protect military members in many ways. For instance, under U.S. Code Title 38, legislatures specifically formulated laws that exempt many creditors from placing claim to VA benefits. Similarly, the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. §1408 “exempts VA disability payments from division upon divorce. It is not an asset which can be divided at divorce as marital or community property.” However, these same statutes provide other avenues for the consideration of these VA benefits in a divorce proceeding.
Although, these benefits will not be considered a marital asset, they will be considered as income for purposes such as alimony and child support and are subject to levy by former spouses and children for support purposes. Looking back to Title 38 Section 5307, it provides that VA benefits are a source of income and the amount a member receives is also based upon the number of dependents the military member has. Therefore, these benefits were clearly intended to not only support the military member but their family as well. The Supreme Court case, Rose v. Rose established the clear guidelines for handling VA benefits in a dissolution of marriage action. The court specifically held that the “anti attachment clause” found in Title 38 did not apply to support orders; specifically allowing a caveat for former spouses. Further, the court held that the spouse was able to garnish the income received from the VA benefits to meet the court ordered support because “these benefits are not provided to support the veteran alone… and are intended to provide reasonable and adequate compensation for disabled veterans and their families.” Therefore, even though these benefits will not be considered a marital asset subject to distribution, they are important to consider for income purposes to properly determine alimony or child support awards. If support is ordered to be paid, a court may order the VA to attach a garnishment to these benefits directly, or may order the veteran to pay their former partner independently.
VA benefits can amount to a significant income or asset to a military member. Therefore, understanding the classification and division of these benefits are crucial to a proper and equitable divorce settlement. If you are entering a military divorce where VA benefits may become a question, employ the assistance of an experienced attorney.
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