What Is VA Apportionment?
CCK Law: Our Vital Role in Veterans Law
Apportionment is the act of assigning a portion of a veteran’s disability compensation benefit to someone other than the veteran, such as a spouse, child or dependent parent. In the event of an apportionment, the Department of Veterans Affairs (VA) will take a certain amount of your VA compensation and allocate it to the person it is being apportioned to.
In essence, this means VA will take a portion of your check and give it to the person who was granted apportionment. This will reduce the monthly amount a veteran receives from VA. There are set circumstances in which someone can apply for apportionment of a veteran’s benefit.
Who Is Eligible for Apportionment?
According to VA, the following are eligible for apportionment:
- A dependent parent
- A child or children who are not living with the veteran, and to whom the veteran is not reasonably contributing (e.g. child support)
- A child in an estranged spouse’s custody
- An estranged spouse and child
VA can only apportion the veteran’s benefit if the veteran is incarcerated or if the veteran is deemed incompetent and is hospitalized without a fiduciary.
Why Did VA Stop Needs-Based Apportionment?
According to VA, needs-based apportionment claims can be challenging to adjudicate due to the complexities surrounding family law. Because VA does not have expertise in family law, nor ready access to much of the necessary evidence to judge these claims, they have decided to stop needs-based apportionment claims and instead defer to state family courts, which are more equipped to handle them.
Veterans and their families should note that these changes will not affect dependents who are already receiving apportionments. However, it is unlikely that veterans or dependents will be able to make adjustments to these apportionment claims, going forward.
What Compensation Can Be Apportioned? And How Much?
According to 38 C.F.R. §3.450, “all or any part of the pension, compensation, or emergency officers’ retirement pay payable on account of any veteran may be apportioned.”
There are limitations in place to determine when a veteran’s benefit cannot be apportioned. For instance, a veteran’s benefit cannot be apportioned if:
- The child to which the apportionment is claimed is under 18 and is in active military service.
- “[…] the total benefit payable to the disabled person does not permit payment of a reasonable amount to any apportionee.”
- “[…] it has been determined that [the spouse of the veteran] has lived with another person and held herself or himself out opening to the public to be the spouse of such other person, except where such relationship was entered in good faith with a reasonable basis (for example trickery on the part of the veteran) for the spouse believing that the marriage to the veteran was legally terminated.”
- The child of the veteran has been legally adopted by another person.
- The spouse of the veteran has been found guilty of conjugal infidelity.
How Do Dependents File for Apportionment?
Though most needs-based apportionment claims will no longer be accepted by VA, certain qualifying dependents may still submit VA Form 21-0788 to potentially earn apportionment benefits. This may apply if:
- The veteran or their surviving spouse is incarcerated; or
- An incompetent veteran without a fiduciary has been institutionalized at government expense.
Dependents should note that as part of the filing process, they may have to submit proof of their veteran’s incarceration or institutionalization.
What Happens In a Divorce?
VA benefits are not considered property that can be divided up in a divorce. Additionally, an apportionment is not automatically done in the event of a divorce. A spouse or child must file a claim for apportionment with VA, and VA then decides whether or not they are entitled to it. If a claimant is denied an apportionment, they can appeal the decision within VA’s system.
