VA Disability, Divorce, Child Support, & Apportionment

CCK Law: Our Vital Role in Veterans Law

Video Transcription:

Lindy Nash: Good afternoon, and welcome to another edition of CCK Live. My name is Lindy Nash, and I am an attorney with the firm. And joining me today are two of my colleagues, Kayla D’Onofrio and Bethany Cooke, both accredited claims agents, also with the firm.
And today, we are going to be talking about divorce and certain things that come along with that and how your VA disability benefits may be impacted by divorce, child support, alimony, apportionment, and so on. So if you are considering a divorce from your spouse or going through a tough time with that and maybe in the middle of one and you have some questions, this video could be really beneficial for you.
So that is the topic for today. And if we do not get to your question, please feel free to check out our website, cck-law.com. There are some really helpful blogs on there not just about divorce and apportionment but about all sorts of different things relating to VA law and VA disability benefits. So please head there to poke around, and see if there is more that we can answer for you. But today, as I said, the topic is divorce. So let us get started. There is a lot to touch on. So as you can imagine, every state in the country actually deals with divorce and child support and alimony in a different way. No state is really perfectly the same. They all kind of do it a little bit differently. But for the most part, they have some similarities where when you get divorced, community property or things that were gathered during the course of your marriage are often split equally between spouses. So whether you come to that agreement together or a judge comes to that, that is usually one of the first things that is done. And if it is non-marital property, meaning something that you brought to the marriage or acquired prior to getting married, that usually stays with that party, again, unless there is an agreement between the parties prior to the marriage or during or after. But anyway, that is kind of the gist of it. However, there are federal laws that regulate the distribution of VA disability benefits. And they do provide some protections for veterans’ disability benefits, because it is a unique benefit and something that is given in certain circumstances. So we are going to touch on all sorts of things like that today just to be extra clear as to what can be done in these circumstances. So just to start really generally, why do we not start with our VA disability benefits considered assets in a divorce. So are they considered part of that community property? Bethany, what do you say?

Bethany Cooke: So the short answer is no. VA disability benefits are not considered assets in a divorce. They are protected by the Uniformed Services Former Spouses’ Protection Act which exempts VA disability benefits from being divided in a divorce. VA disability benefits are not considered marital or community property.

Lindy: Yes. I was just going to say great. That exactly touches on what we were just explaining about what is marital property, community property? Can it be divided? And so I think you were just about to get into this. But is there an exception for military retirement pay?

Bethany: Yes. So this is specific to VA disability benefits. So military retirement can be a marital asset that is subject to division by a family court.

Lindy: Okay. Okay. Great. So if you do have military retirement, that can be taken into account by a judge, and it can be divided and potentially given to your ex-husband or wife.

Bethany: Yes. And that is moving on to the next topic. But military retirement can be garnished by the government.

Lindy: So yes. As you just alluded to, let us move a little bit onto the topic of garnishment due to deaths and really whether disability benefits can be garnished at all. So why do we not start with just the really general question of what is garnishment? So Kayla, what is garnishment?

Kayla D’Onofrio: So garnishment is when money is taken away or seized from an individual in order to satisfy some sort of outstanding debt that they may owe whether it is for the government or for another purpose.

Lindy: Okay. Okay. Great. So with that said, can VA disability benefits be garnished? In other words, can they be taken to pay off a debt?

Kayla: Generally speaking, yes, they can, but only if the veteran has waived military retired pay to receive that compensation. So when you have your military retirement pay, there are certain offsets that go into whether you can receive your full amount of compensation and the full amount of retirement pay; we are not going to get into sort of how those offsets work today. But basically, you cannot receive both unless you are rated at certain levels, and even then there are offsets.

So when VA is looking at whether they can garnish benefits, they are only looking at whether you have waived your retirement pay. And only those compensation benefits would be subject to garnishment. So only the amount of disability that is paid in place of the retirement pay can be garnished. And the remaining amount would be protected from garnishment. So anything that you would have been paid, regardless of waving that retirement pay, should be protected and cannot be taken.

If a veteran has not waived their retirement pay, then their VA benefits cannot be garnished for any of the reasons.

Lindy: Okay. Got it. So with that said, say, you have waived retirement pay, how is garnishment really done? Is your whole, monthly compensation taken to satisfy a debt? Or really, how does that work?

Kayla: So when VA is looking into how much is going to be garnished, they are going to take a couple of different things into consideration to determine what amount can be reasonably garnished.

So the biggest thing that they are going to be looking at is the veteran’s financial picture and what their income looks like. If VA disability is really their only source of income, they are not going to take an amount that is going to cause any sort of undue financial hardship to the veteran.

They are also going to be looking at whether the veteran has any additional special needs that would require some additional income. So, again, they are just not going to take money away that is going to cause undue hardship to the veteran and cause them to not be able to care for themselves properly.

If VA finds that the disability compensation is their only source of income, then the disability cannot be garnished to pay off their credit debts or medical debts or pseudo-loans, taxes, anything like that. That money should be protected, again, because they do not want to cause financial hardship to the veteran.

Lindy: Right. Okay. Okay. Well, that is great. So it will not be one, swift movement where other things are not taken into consideration. It should take into account your financial status and what other things you have going on.

Kayla: Correct. Yes.

Lindy: Okay. Okay. Great. So with that general discussion of garnishment, let us move forward and talk a little bit about alimony and child support. So these are two really important things that come up in divorces all the time. And we will touch on those really quickly, and then get into how your benefits relate to them.

So just in a general sense, for those who may not know, alimony is basically a court-ordered legal obligation for one person to provide financial support to their spouse or ex-spouse after separation. Typically, it terminates when the spouse who is receiving that financial support remarries. But basically, it is a way for one spouse to kind of support the other and make sure that they are able to stand on their own two feet and move forward. Sometimes certain things are given up during a marriage or one spouse quits their job or does not finish school to support the other spouse and things like that. So this is a way for the court system or for two parties to kind of make things as even as possible after a separation. So that is alimony.

And then child support is basically an agreement that can be made between the two parties or can be made in a court setting, so from a judge. And it, basically, just orders one spouse to, again, pay the other spouse who is likely in primary physical custody of any minor children. And it is just a monetary payment to help support the raising of those kids or to give them some sort of financial benefit to help pay for food and clothing and transportation and things along those lines so that one spouse does not have a heavier burden than the other.

So, as I said, alimony and child support are two things that come along and hand-in-hand with divorce and occur pretty frequently.

So let us talk about if a spouse or ex-spouse is ordered to pay alimony or child support, how your VA disability benefits may be incorporated into that.

So Bethany, let us start with just something really basic. Can VA benefits be taken into account when the court is looking at a veteran’s income for child support and alimony purposes?

Bethany: Sure. So, yes, they can. VA benefits would be counted towards a veteran’s income for child support purposes. So courts would use a veteran’s monthly VA benefits to calculate the child support payments. VA benefits are tax-free. So the entire amount of the compensation would be considered in a family’s court’s determination of child support.

Lindy: Okay, Great. Unfortunately, sometimes the court systems have to deal with when the spouse who is ordered to pay a child support or alimony actually is not paying. So it is frequent where some spouse is not able to pay the full amount of child support or not able to make those monthly payments. And so if that is the case, if a veteran fails to pay the ordered child support or the ordered alimony payment, could their VA benefit be garnished by the government?

Bethany: So it could in specific circumstances. There was a Supreme Court case, Rose v. Rose, that determined that in certain circumstances of veterans, VA disability benefits could be garnished if they were failing to pay the child support payments.

Lindy: Okay. Great. And so along those lines, would child support or alimony automatically be taken out of the veterans benefits?

Bethany: No, it would not be. So how how it works for VA benefits is that the estranged spouse or an ex-spouse on behalf of the dependent child, they would have to file for apportionment– apportionment, sorry. And the apportionment would have to be granted by the VA in order for the veteran’s disability benefits to be garnished.

Lindy: Okay. Great. Thank you. So on the topic of apportionment, let us go there and dig a little bit deeper to explain what that really is. So Kayla, can you tell us what is apportionment?

Kayla: Yes. So apportionment is when part of the veteran’s disability compensation is given to another eligible person such as the spouse, the child, and then parent, someone who the veteran is financially responsible for.

So what happens when part of the veteran’s check is apportioned is that VA takes whatever amount they deem reasonable and necessary directly from the veteran’s check and sends it to the apportionee.

So the veteran’s check would, thereby, be reduced by whatever amount is being apportioned to the dependent.

Lindy: Okay. Great. And so I assume not anyone can just file for apportionment. So who qualifies for that?

Kayla: So, in general, those who qualify include estranged spouses or children of the veteran, children in estranged spouse’s custody, a child who is maybe not in the custody of either the veteran or the estranged spouse and who is not getting reasonable financial support from either the veteran or the spouse, or dependent parents.

So VA is really looking at whether the person filing for apportionment demonstrates an actual need for that apportioned money. If the veteran is not supporting the family member that they are legally responsible for or if they are not keeping up with their alimony or child support payments, that is when VA will look at whether apportionment is necessary and is reasonable.

Lindy: Okay. Okay. Great. And so, say, you are one of those people and you file for apportionment, when would it not qualify? So when would you be turned down, if you will, or apportionment not be approved?

Kayla: So first, the thing we kind of touched upon earlier is that if you are looking to have a portion of the veteran’s benefits apportioned to you, you have to file for it. So it is not something that is going to automatically be granted. Otherwise, it is not going to be granted if that apportioned amount is going to cause undue financial hardship to the veteran. Again, they just do not want to take away the veteran’s livelihood if they do not really have anything else to survive on.

If the veteran’s former spouse is filing and they are holding him or herself as married to or living with another person and they were led to believe that their marriage to the veteran was terminated– I am sorry, unless they believe their marriage to the veteran was terminated and if the child who is filing for apportionment, if they have been legally adopted by another person, they would not be eligible; the veteran would no longer be financially responsible for that child.

And the last reason that someone would not be eligible is if they are a child of the veteran and they are under the age of eighteen, but they are currently in active military service; they would no longer be eligible for that benefit.

Lindy: Okay. Okay. Great. Thank you. So assuming that you are an eligible dependent parent or spouse, or whatever the situation may be, and it would not cause undue financial hardship to the veteran, what exactly happens after someone files for apportionment, Bethany?

Bethany: Sure. So a request for apportionment works like a claim. The VA, basically, will undergo development if the eligible person did not submit financial statements in support of their request. VA will often request that both the veteran and the person filing for the apportionment submit evidence showing, maybe, on the veteran’s part if the apportionment would result in financial hardship for them.
And on the eligible person filing for it, they would need to submit document showing that the apportionment is necessary.

Once VA has that evidence, they are going to issue a decision either granting or denying the apportionment. And that VA decision will also determine the amount of the apportionment if it was granted.

At that point in time, either the veteran or the person filing for the apportionment could appeal the VA’s decision if they were not happy with it. And a veteran could also file for a hardship reduction of the apportioned amount if they are unable to meet their financial needs because of the amount that the VA has decided to be apportioned.

Lindy: Okay. Great. So even if apportionment is granted but the veteran feels that it is too big of a financial strain or maybe their financial situation has changed, they are able to appeal or run to the VA’s attention and say, “Hey, that does not work out for me. It is too much,” as long as you demonstrate that need.

Bethany: Exactly. And it is the same thing for the person who filed for the apportionment. I think it is important to know that they could also appeal the decision if they were unhappy with the VA’s decision.

Lindy: Okay. Great. Excellent point. Although not totally on the topic of divorce, are there any other instances where apportionment can be filed?

Bethany: Yes. So this one, you can kind of think of it as maybe working a little bit more in the veteran’s favor. So spouses of veterans who are incarcerated may file for an apportionment of the veteran’s benefits. So this would be helpful in a case where a veteran is incarcerated, and as a result, their monthly benefits are being reduced. In that case, the veteran’s spouse might be able to request an apportionment. And in that case, the total of the veteran’s payments could be paid to the spouse instead of the reduced amount that is going to the veteran.

Lindy: Okay. Great. Yes. That is another example where I feel we see probably a portion of it most often when a veteran has been incarcerated and, like you have said, their spouse would like to receive the full monthly benefit instead of that decreased ten percent of amount as if they were incarcerated. So that is good to know that you can file for apportionment not just in these divorce circumstances or estranged spouse circumstances but in other ways as well.

So we have touched on a lot of topics today: divorce, apportionment, child custody– child support – excuse me – alimony, and everything in between. So do you have any closing thoughts, Kayla or Bethany, for someone who might be in the middle of a divorce or thinking about it? Any tips?

Kayla: I would just say that with all of the ways that VA benefits can be garnished or how apportionment works, it is even more confusing than kind of what we see in our normal appeals process which is already very confusing. There are more people involved. There are different forms, different deadlines. And there are just kind of a lot more going on, in general, different evidences that needs to be submitted for both parties.

So if you are a veteran and someone is filing for apportionment of your claims or if you are filing for apportionment of the veteran’s claims, I would recommend reaching out to a VSO or a private attorney to help you kind of sort through all of the different pieces that are involved in getting those benefits and making sure that they are reasonably granted or denied.

Bethany: I would just add that if you are a veteran and you are going through a divorce or you might be in a situation where someone could be requesting an apportionment, I would just say to try and stay informed if possible. A lot of the times, veterans might not know that someone has requested an apportionment, and so they get the decision from the VA. So I would just caution to keep an eye on eBenefits, stay in contact with the VA just so that if this is happening, the veteran can know if there is anything they need to be submitting so that they do not get a decision that they are not expecting.

Lindy: All right. That is great advice. Thank you both so much for your time today. And thank you everyone for tuning in. And, like I said, in the beginning, if you have more questions or would like to know more about VA disability benefits, please go to our website, cck-law.com.

And also, like Kayla said, this is complicated stuff. It is not simple and easy, and it can be really tough. So feel free to reach out to a local VSO, or call a private attorney, and get some more information so that you are fully informed and you know what is going on in your case.

Lindy: All right. Well, thank you both so much. And we will see you soon.