Veteran benefits are protected from creditors, but are they protected against your ex-spouse?
Disabled veterans bravely served our nation, earning the right to receive VA benefits and income in the process. The question for some disabled veterans, however, is whether Florida law treats those benefits as marital property.
When Congress wrote the law on veterans’ benefits by way of Title 38 of the U.S. Code, the law was written with creditors in mind. Namely, veterans’ benefits were meant to be protected from creditors. Title 38 makes mention of an anti-attachment clause, which prevents ordinary creditors from garnishing VA payments or executing on them.
That said, family members are not your typical creditors. This is made explicitly clear in the U.S. Supreme Court case of Rose v. Rose. The court made it clear that the anti-attachment clause of Title 38 (for reference, 10 U.S.C. Section 5301) is not applicable to a court order requiring a veteran to support their family. As such, VA benefits are considerable as income when a Florida judge decides on the amount of support children and/or a spouse need.
Even so, there are important legal distinctions that must be made.
Disability Benefits and Marital Property
Disabled veterans who receive disability benefits and compensation will not lose half of their benefits as part of marital property division. The Uniformed Services Former Spouses’ Protection Act makes clear that disability payments are exempted from treatment as marital property. Therefore, these benefits are not divisible in a Florida divorce.
Disability Benefits and Alimony/Child Support
Unlike the marital property exemption, disability benefits and VA benefits may be considered a source of income when awarding child support or alimony. VA benefits are meant to support veterans and their family, not just the veterans themselves.
In Title 38, lawmakers expressly stated that VA benefits are intended to provide support for dependents. In some cases, VA benefits can even be garnished to satisfy child support or alimony obligations when a veteran attempts to not pay.
It is worth noting, however, that VA disability compensation, specifically, may not be garnished whatsoever unless the veteran waived part of their retirement pay to receive VA disability benefits. If a veteran did waive part of their taxable military retirement to receive nontaxable compensation for a disability, then those disability benefits may be garnished to meet court-ordered support obligations.
In such cases, the VA will decide the amount to be garnished. Their analysis will center on:
• The veteran’s income and special needs
• The spouse’s amount of income available
• Special needs of a former spouse and any children not in the veteran’s custody who need additional funds
Garnishment is not permitted at all if:
• Garnishment would provide the veteran undue hardship
• A former spouse or child has not filed for apportionment
• A former spouse is living with another person and acting as if they are married
• A former spouse was found to have engaged in cheating by a state court
However, even if a veteran’s benefits may not be garnished, it is still possible for VA income to be considered by a Florida judge when deciding support obligations.
If you have questions regarding your permanent injunction, or are unaware as to the terms and conditions in, talk to, and retain, a family law attorney who can help. Contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at [email protected]
Tampa, FL, Family Lawyer FAQs
Can Custody Or Support Orders Be Modified?
Yes, custody and support orders can be modified under certain circumstances. Changes in the situation of either parent or the child can warrant a modification. For custody, factors such as a significant change in a parent’s living situation, employment, or the child’s needs may justify a change. For child support, changes in income, employment status, or financial circumstances can lead to a request for modification. To initiate the process, one must file a petition with the court demonstrating the need for change. It’s advisable to consult a family law attorney to navigate the legal requirements and ensure that modifications are properly handled.
What Is Mediation, And How Does It Work In Family Law Cases?
Mediation is a process where a neutral third party, the mediator, helps parties in a family law case, such as divorce or child custody, reach an agreement outside of court. The mediator facilitates communication, helps identify key issues, and guides both parties toward a mutually acceptable resolution. Unlike a judge, the mediator doesn’t make decisions but offers suggestions and strategies to resolve disputes. Mediation is often less expensive, quicker, and less adversarial than litigation. In family law cases, mediation can help improve cooperation, especially in matters like custody or support, where ongoing communication is necessary.
What Happens If My Spouse And I Cannot Agree On Parenting Time?
If you and your spouse cannot agree on parenting time, the court will likely intervene to determine a schedule that serves the best interests of the child. This may involve mediation or a hearing where both parties present their preferences. The judge will consider factors such as the child’s age, relationship with each parent, and each parent’s ability to provide for the child’s needs. If mediation fails, the judge will issue a formal parenting time order. The court’s goal is to create a plan that supports the child’s well-being and ensures both parents have meaningful time with the child, unless there are safety concerns.
How Does Domestic Violence Affect Custody And Divorce Proceedings?
Domestic violence can significantly impact custody and divorce proceedings. In cases where one parent has been abusive, the court prioritizes the safety and well-being of the children. The abusive parent may be granted limited or supervised visitation, or, in extreme cases, may lose custody altogether. Evidence of domestic violence, such as police reports, restraining orders, or testimony, can influence the division of assets, spousal support, and custody decisions. Courts aim to protect victims and children, ensuring that the abusive parent does not have access to the children in a way that endangers their physical or emotional safety. Legal representation is crucial in these cases.
What Is Alimony, And How Is It Calculated?
Alimony, also known as spousal support, is financial assistance one spouse may be required to pay to the other after a divorce or separation. It is intended to help the lower-earning spouse maintain a standard of living similar to what they had during the marriage. Alimony is calculated based on several factors, including the length of the marriage, each spouse’s financial and earning capacity, the standard of living during the marriage, and the recipient’s need for support. Courts may also consider the recipient’s age, health, and contributions to the marriage. Alimony can be temporary or permanent, depending on the circumstances.