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Veterans Law

Legal Separation and VA Disability Benefits

August 3, 2020

Veterans are often concerned about how much of their VA disability compensation they may lose during and after a divorce or legal separation, due to property division, alimony, and child support.  Each state has its own laws governing divorce, child support, and alimony; however, there are also federal laws governing the distribution of VA disability benefits which provide certain protections for veterans.

What Are VA Disability Benefits?

VA disability benefits offer a tax-free payment to veterans on a monthly basis if they can show that they are currently suffering from a debilitating condition as due to their time in service.  Veterans may qualify for VA disability benefits for physical conditions (e.g., hearing loss, degenerative disk disease) and mental health conditions (e.g., depression, anxiety).  As of December 1, 2019, VA compensation rates based on a veteran’s combined disability rating are as follows:

  • 10% – $142.29
  • 20% – 281.27
  • 30% – $435.69
  • 40% – $627.61
  • 50% – $893.43
  • 60% – $1,131.68
  • 70% – $1426.17
  • 80% – $1,657.80
  • 90% – $1,862.96
  • 100% – $3,106.04

Veterans with a combined disability rating of 30 percent or higher may be eligible to receive additional monthly compensation for qualifying dependents.  For VA purposes, a dependent is a family member who relies on the veteran financially and meets qualifying criteria.  Qualifying dependents include the following:

  • A spouse;
  • Unmarried children (including biological children, step-children, and adopted children) who are under the age of 18; between the ages of 18 and 23 and attending school full-time; or were seriously disabled prior to reaching age 18; or
  • Parents in the veteran’s direct care whose net worth and income are below the federal poverty threshold

Importantly, eligible veterans will also have access to certain VA programs and benefits, such as employee services, VA health care, life insurance, education and training services, and VA memorial benefits.

How Do Spouses Qualify for VA Benefits?

In order to qualify as a spouse for VA benefits, the marriage must be valid.  Veterans should have proof of the legitimacy of the marriage in case it is required for submission and review prior to receiving benefits.  For example, veterans are often asked to submit a copy of their marriage certificate.  In this case, when the veteran is still living, they must also submit VA Form 21-686c, Declaration of Status of Dependents.  VA Form 21-686c is a 12-page form that veterans use to add a spouse (or child under the age of 18) to their VA benefits.  To add a spouse, veterans will fill out the following sections:

Adding a Spouse to Your VA Benefits

Section I – Veteran/Claimant Identification Information

In this section, veterans are required to fill out basic identifying information, including the following:

  • Name
  • Social security
  • VA file number
  • Date of birth
  • Mailing address

Section II – Information Needed to Add Spouse

Section II requires veterans to provide information about their spouse that is being added to their benefits.  Here, they must list their spouse’s name, date of birth, and social security number, and indicate whether they are also a veteran.  They will also be asked to provide details about their marriage, including the date of marriage, place of marriage, and how they were married (e.g., religious ceremony, common law, etc.).  Furthermore, veterans must provide complete information about their prior marriages and their current spouse’s prior marriages (if applicable), including the:

  • Date and place of marriage
  • Name of former spouse
  • Reason for termination (death, divorce, annulment)
  • Date and place the marriage was terminated

Again, it is important to attach supporting documentation when submitting VA Form 21-686c to reflect the information provided in this section.  Specifically, veterans must attach copies of their marriage certificate and any divorce decrees.

Section IV – Veteran Reporting Divorce from Former Spouse

Veterans must fill out this section to report a divorce and remove a former spouse from their disability benefits.  Completing this section of the form and submitting it to VA as quickly as possible following a divorce, or legal separation, is extremely important.  Failure to notify VA of this change in the status of dependents can result in an overpayment.

Section VI – Veteran/Claimant Reporting Death of a Dependent

If a dependent spouse passes away, veterans must notify VA by completing this section.  Here, the veteran will have to provide the name of the spouse, the date of death, and the place of death in order to remove them from their VA benefits.  Once again, failure to notify VA of this change can result in an overpayment.

Section X – Beneficiary/Claimant’s Certification and Signature

To complete VA Form 21-686c, veterans must sign and date the end of the application to confirm that the information provided is accurate.

Will Spouses Continue to Receive VA Benefits after Legal Separation or Divorce?

As alluded to above, veterans must notify VA if they become divorced from a dependent spouse for which they are receiving additional monthly compensation.  However, do former spouses receive any VA benefits following divorce or legal separation?  The Uniformed Services Former Spouses’ Protection Act exempts VA disability benefits from being divided during a divorce.  In other words, VA disability compensation is not an asset that a judge can divide as marital or community property.  It is important to note that this is different than the treatment of military retirement benefits, which can be a marital asset subject to division by a family court.

Importantly, when a veteran and their spouse are legally separated rather than divorced, the same rules still apply.  Essentially, in the case of any separation where the veteran and spouse do not contribute to each other financially (or do not file a joint tax return), the veteran’s spouse forfeits the right to future VA benefits.

Will Surviving Spouses Receive Dependency and Indemnity Compensation if Legally Separated at the Veteran’s Time of Death?

Dependency and Indemnity Compensation (DIC) is a monthly benefit the Department of Veterans Affairs (VA) awards to a surviving spouse or dependent child(ren) of a service member who:

  • Died in action
  • Died from a service-connected condition

As of September 2013, same-sex spouses of military veterans are afforded the same beneficiary rights as those of heterosexual military veterans.

Unfortunately, not everyone who was married to a service member is entitled to DIC benefits.  There are certain criteria that both the veteran and surviving spouse must meet.  VA’s website states that the surviving spouse of a veteran is eligible to receive DIC benefits if they:

  • Were married to a service member who died “while on active duty, active duty for training, or inactive duty training”; or
  • Were legally married to the veteran before January 1, 1957; or
  • Married the veteran within 15 years of military discharge when the service-connected condition that caused the veteran’s death began or was aggravated; or
  • Were married to the veteran for at least one year immediately preceding the veteran’s death; or
  • Had a child or children with the veteran; and
  • Continuously cohabited (i.e., lived with) the veteran until their time of passing; and
  • Were not separated from the veteran, or, if separated, were not responsible for the separation; and
  • Is not currently remarried.

Essentially, VA requires continuous cohabitation between a surviving spouse and the veteran to qualify for benefits.  Separations that occurred during the marriage do not prevent surviving spouses from receiving benefits as long as they were no longer estranged at the time of the veteran’s death.  As indicated above, the exception to the cohabitation rule states that if the legal separation is deemed the veteran’s fault (i.e., due to misconduct or their own choosing), the surviving spouse may still receive benefits.

Furthermore, there are three ways in which VA’s cohabitation requirement may be satisfied:

  • The veteran and spouse were living together as a married couple at the time of the veteran’s death;
  • The couple lived apart for a mutually agreed upon separation that does not constitute desertion; or
  • The couple was living apart at the time of the veteran’s death due to marital discord, but the separation was not the surviving spouse’s decision (see above).