Military service often comes at a significant personal cost, sometimes resulting in lasting physical or psychological injuries incurred in the line of duty. Veterans Affairs (VA) disability compensation is a vital federal benefit designed specifically to compensate veterans for these service connected disabilities and the resulting loss of earning capacity. It is a recognition of sacrifice, intended solely for the benefit of the veteran.
When a marriage involving a veteran receiving VA disability pay ends in divorce, the question inevitably arises: Is this monthly payment considered a marital asset subject to division? Can a Florida court order the veteran to share their disability compensation with their former spouse as part of the property settlement?
The answer, rooted firmly in federal law, often surprises and frustrates non veteran spouses. Unlike military retired pay, VA disability compensation enjoys special protection and is generally not divisible as marital property in a Florida divorce. However, this federal shield is not absolute. While the principal amount cannot be divided like a bank account, the funds received can significantly impact the financial landscape of the divorce, particularly when it comes to calculating child support and alimony.
Understanding this critical distinction between property division and support calculations is paramount. Federal preemption creates a complex legal minefield where state courts have limited authority. Navigating the rules surrounding VA disability pay requires careful analysis and strategic planning, making the expertise of a seasoned Tampa military divorce lawyer absolutely essential. Misinterpreting these laws can lead to unenforceable orders or unfair financial outcomes for either party.
What is VA Disability Compensation?
First, it is crucial to understand what this benefit represents. VA disability compensation is a tax free monetary benefit paid to veterans who are disabled by an injury or illness that was incurred or aggravated during active military service. The amount varies based on the severity of the disability, rated on a percentage scale from 0% to 100% by the Department of Veterans Affairs.
Key characteristics:
- Purpose: To compensate for loss of earning capacity resulting from service connected disabilities.
- Source: Paid by the Department of Veterans Affairs, not the Department of Defense (DoD).
- Tax Status: It is tax free income.
- Eligibility: Based solely on the veteran’s service connected disability rating.
This is fundamentally different from military retired pay, which is deferred compensation for years of service. This distinction is the core reason federal law treats them differently in divorce.
The Federal Shield: Why State Courts Cannot Divide VA Disability Pay as Property
The primary reason Florida courts cannot directly divide VA disability pay stems from the principle of federal preemption and specific federal statutes.
- Title 38, U.S. Code, Section 5301(a): This federal law explicitly protects VA benefits from attachment, levy, or seizure by creditors or through legal processes. It states that these payments “shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.” Courts have consistently interpreted this to mean that state divorce courts cannot order a direct division or garnishment of VA disability payments as part of a property settlement.
- The Uniformed Services Former Spouses’ Protection Act (USFSPA): While the USFSPA authorizes state courts to divide “disposable retired pay,” it specifically excludes amounts deducted from retired pay as a result of a VA disability waiver from that definition.
- Mansell v. Mansell (U.S. Supreme Court, 1989): This landmark Supreme Court case solidified the issue. The Court held that the USFSPA grants states the authority to divide only disposable retired pay, and explicitly preempts(prohibits) state courts from dividing the portion of military retired pay that has been waived by the veteran to receive non divisible VA disability benefits.
The Bottom Line: Federal law creates a strong shield around VA disability payments, preventing Florida courts from treating them as a marital asset subject to equitable distribution. A divorce decree ordering a veteran to pay, for example, “30% of their VA disability check” to the former spouse as property division would be invalid and unenforceable under federal law. Any Tampa military divorce lawyer knows this is a bright line rule.
The “VA Waiver” Problem: Impact on Disposable Retired Pay
The interaction between military retired pay and VA disability pay creates a common and often contentious issue in military divorces. Federal law generally prohibits “double dipping”—receiving both full military retired pay and full VA disability compensation simultaneously.
To receive VA disability pay, a military retiree must typically waive a corresponding amount of their gross military retired pay, dollar for dollar.
- Example: A retiree is eligible for $3,000/month in gross military retired pay. They are also rated 50% disabled by the VA, entitling them to $1,000/month in tax free VA disability pay. To receive the VA pay, they must waive the first $1,000 of their military retired pay.
- They receive: $1,000 (VA Disability – Tax Free) + $2,000 (Military Retired Pay – Taxable) = $3,000 Total.
Why This Matters in Divorce: Remember, the USFSPA only allows state courts to divide disposable retired pay. And the definition of disposable retired pay excludes amounts waived for VA disability.
- Using the Example Above:
- Gross Retired Pay: $3,000
- VA Waiver: -$1,000
- Disposable Retired Pay (Divisible): $2,000
Even if the Florida court determines the marital share of the gross retirement pay is 50%, the former spouse’s 50% share will be calculated based on the reduced, disposable amount of $2,000, not the full $3,000. The $1,000 waived portion is protected from division as property by Mansell.
This “VA waiver” can significantly reduce the amount of divisible retired pay available to the former spouse, sometimes dramatically, especially for veterans with high disability ratings. This financial reality must be understood and addressed strategically during the divorce, ideally with the help of a Tampa military divorce lawyer.
The Crucial Exception: VA Disability Pay IS Considered Income for Support
While federal law prohibits dividing VA disability pay as property, it does not prevent Florida courts from considering it as income when calculating child support and alimony. This is the most important distinction for both the veteran and the non veteran spouse to understand.
Florida Statute § 61.30(2)(a)(8): Child Support Florida’s child support statute explicitly includes “disability benefits” in its broad definition of “gross income.” Florida courts have consistently interpreted this to include VA disability compensation. When calculating child support using the Florida Child Support Guidelines Worksheet, the veteran’s monthly VA disability payment is added to their other income sources (like base pay if still active, remaining retired pay, or civilian wages) to determine their total gross income.
Alimony Calculations: Similarly, when determining alimony under Florida Statute § 61.08, the court must consider each party’s financial resources and their ability to pay. VA disability compensation is considered a financial resource and is factored into the veteran’s ability to pay alimony. It is also considered income available to the veteran to meet their ownneeds, which can impact their claim if they are the one seeking alimony.
Why the Difference? The legal reasoning is that calculating support is different from dividing property. Support obligations (child support and alimony) are based on the veteran’s overall financial ability to provide for their family. VA disability payments, even though protected from property division, represent a regular, reliable stream of tax free income that enhances the veteran’s financial picture and their ability to meet support obligations. Federal law does not preempt a state court’s ability to consider all income sources when setting appropriate support levels. A Tampa military divorce lawyer representing either the veteran or the spouse must accurately account for this income.
Practical Impact: A veteran receiving significant VA disability pay cannot successfully argue they have “no income” to pay child support or alimony. That disability check counts. This ensures that children receive adequate support and that alimony is based on the veteran’s true financial capacity, preventing the disability benefit from being used to unfairly shield income from legitimate family support obligations.
The Prohibition on “Indemnity” Clauses: No Backdoor Division
Recognizing the financial impact of the VA waiver on the former spouse’s share of retired pay, lawyers sometimes attempted to draft “indemnity” clauses in divorce agreements. These clauses essentially required the veteran to reimburse the former spouse directly for any reduction in their share of retired pay caused by a future VA waiver or increase in disability rating.
The U.S. Supreme Court addressed this in Howell v. Howell (2017). The Court ruled that such indemnity clauses are preempted by federal law and are unenforceable. Ordering a veteran to reimburse the former spouse for the waived portion of retired pay is essentially an indirect way of dividing the non divisible VA disability benefit itself, which Mansell prohibits.
What This Means: You cannot include a clause in your Florida Marital Settlement Agreement that requires your veteran spouse to pay you back if their VA disability rating increases later and further reduces your share of the military pension. Such a clause is legally void. This ruling underscores the finality of the VA waiver’s impact on property division. Once retired pay is waived for disability, that portion is permanently removed from the divisible marital estate. This makes careful planning and negotiation during the divorce, with the help of a Tampa military divorce lawyer, even more critical.
Strategic Considerations and Creative Solutions
Given that VA disability pay cannot be directly divided as property and indemnity clauses are forbidden, how can parties achieve a fair outcome, especially when a significant VA waiver drastically reduces the divisible retired pay? Strategy and creative negotiation become key.
- Accurate Income Calculation is Paramount: Ensure the VA disability pay is correctly included as income for all support calculations. This is often the most significant way to ensure the veteran’s full financial capacity is considered. An experienced Tampa military divorce lawyer will demand proof of VA benefits.
- Focus on Other Assets: Since the VA pay itself cannot be divided, negotiations might focus on achieving an “unequal” but equitable distribution of other marital assets to offset the non divisible benefit. For example, the non veteran spouse might negotiate to receive a larger share of the equity in the marital home, a greater portion of a TSP account, or keep another asset entirely in exchange for waiving interest in the reduced military pension. This requires careful valuation of all assets and skilled negotiation.
- Alimony Structure: Alimony can sometimes be structured to account for the disparity created by the non divisible VA pay, provided the statutory alimony factors (need, ability to pay, etc.) support it.
- Understanding Future Waivers: If the service member is still on active duty or recently retired but has not yet applied for VA disability, the potential for a future waiver exists. While you cannot get an indemnity clause, understanding this future possibility might influence negotiations regarding other assets or long term alimony.
- CRSC and CRDP: Be aware of two specific types of payments that interact with VA disability and retired pay:
- Combat-Related Special Compensation (CRSC): This is compensation for combat related disabilities. Like VA disability pay, CRSC is generally not considered marital property divisible by state courts. It may be considered income for support.
- Concurrent Retirement and Disability Pay (CRDP): This allows some retirees with a VA disability rating of 50% or higher (or certain other conditions) to receive both their full military retired pay and their VA disability pay, without the dollar for dollar waiver. If a veteran is eligible for and receives CRDP, it effectively restores the portion of retired pay that would otherwise have been waived. This restored amount isconsidered disposable retired pay and is divisible under the USFSPA. Determining CRDP eligibility and its impact is a complex calculation best handled by a Tampa military divorce lawyer.
Why You Need a Tampa Military Divorce Lawyer with Specific VA Knowledge
The interplay between federal VA regulations, the USFSPA, Florida equitable distribution law, and Florida support statutes is incredibly complex. Mistakes in this area can have profound and often irreversible financial consequences.
A lawyer unfamiliar with military benefits might:
- Incorrectly attempt to divide VA disability pay as property, leading to an unenforceable order.
- Fail to include VA disability pay as income for support calculations, resulting in unfairly low support orders.
- Misunderstand the VA waiver’s impact, leading to incorrect calculations of the divisible portion of retired pay.
- Fail to recognize the significance of CRDP or CRSC.
- Draft unenforceable indemnity clauses.
An experienced Tampa military divorce lawyer understands these specific challenges. They know:
- How to obtain necessary documentation (like VA rating decisions and military pay records) through discovery.
- How federal law limits and permits state court actions regarding VA benefits.
- How to accurately calculate income, including VA disability, for Florida support guidelines.
- How to craft legally sound arguments regarding the treatment of VA waivers and their impact on equitable distribution.
- How to negotiate creative settlements that account for the non divisible nature of VA pay while still achieving a fair overall financial outcome.
Attempting to navigate a divorce involving VA disability pay without specialized counsel is like navigating a minefield without a map. The risks are simply too high. Whether you are the veteran seeking to protect your earned benefits or the spouse seeking a fair share and adequate support, ensure your representation understands the unique rules of engagement. Choose a Tampa military divorce lawyer with proven experience. Your financial security depends on finding the right Tampa military divorce lawyer. A dedicated Tampa military divorce lawyer is essential. Trust your Tampa military divorce lawyer.
Conclusion: Know Your Rights, Respect the Limits
VA disability compensation holds a unique and protected status in Florida divorce law. Rooted in federal preemption, these benefits, intended to compensate veterans for service connected sacrifices, cannot be treated as marital property subject to direct division. The landmark Mansell decision and federal statutes create a clear prohibition against state courts awarding a former spouse a share of these funds as part of an equitable distribution scheme. Furthermore, attempts to circumvent this rule through indemnity clauses requiring the veteran to reimburse for VA waivers are also unenforceable under Howell.
However, this federal shield does not erase the financial reality that VA disability payments represent a significant, often tax free, income stream for the veteran. Florida law recognizes this, explicitly including disability benefits in the definition of gross income for child support and considering it fully when assessing a party’s ability to pay alimony.
Successfully navigating a divorce involving VA disability requires respecting the federal limits on property division while simultaneously ensuring the veteran’s true income is accurately factored into support calculations. It demands careful analysis of military retired pay waivers, potential CRDP eligibility, and strategic negotiation regarding other marital assets. Given the complexity and potential for costly errors, securing guidance from a knowledgeable Tampa military divorce lawyer is not just advisable—it is essential for protecting your rights and achieving a just outcome.
Frequently Asked Questions (FAQ)
Can my ex spouse get half of my VA disability check in our Florida divorce? No. Federal law prohibits Florida courts from dividing VA disability payments as marital property. Your ex cannot be awarded a percentage share of the disability check itself as part of the property settlement.
Does my VA disability pay count as income for child support or alimony in Florida? Yes. While it cannot be divided as property, Florida law considers VA disability payments as income when calculating child support obligations and when assessing a veteran’s ability to pay alimony.
My military retirement pay was reduced because I took VA disability. Does my ex get less? Yes, usually. State courts can only divide “disposable retired pay,” which excludes amounts waived for VA disability. Your ex spouse’s share will be calculated based on the reduced, post waiver amount of your retired pay. A Tampa military divorce lawyer can explain the specifics.
Can my divorce agreement make me pay my ex back if my VA disability increases later? No. Clauses requiring a veteran to “indemnify” or reimburse a former spouse for reductions in retired pay due to VA waivers are unenforceable under the Supreme Court ruling in Howell v. Howell.
Is Combat-Related Special Compensation (CRSC) divisible in a Florida divorce? Like VA disability pay, CRSC is generally not considered divisible marital property by Florida courts due to federal law. It may, however, be considered income for support purposes. Discuss this complex issue with your Tampa military divorce lawyer.
The McKinney Law Group: Tampa Divorce Attorneys for Military Families in Transition
Military life brings unique stresses that can impact marriage. We assist Tampa service members and spouses in resolving divorce issues while respecting their service commitments.
Call 813-428-3400 or email [email protected] to learn more.