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]