Thursday, August 11, 2022

Can Spouse Get Half Of Va Disability

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Percent Disabled Veterans And Surviving Spouses Frequently Asked Questions

Divorce in the Military: Can My Spouse Take My Military Retirement or VA Disability Benefits?

Translation:

Tax Code Section 11.131 requires an exemption of the total appraised value of homesteads of Texas veterans who received 100 percent compensation from the U.S. Department of Veterans Affairs due to a 100 percent disability rating or determination of individual unemployability by the U.S. Department of Veterans Affairs.

No, this exemption can only be applied to a residence homestead of a disabled veteran.

A disabled veteran who owns property other than a residence homestead may apply for a different disabled veterans exemption under Tax Code Section 11.22 that is applied according to the veterans disability rating of 10 percent or higher. An eligible disabled veteran may receive both exemptions.

Yes, a disabled veteran with a service connected disability receiving 100 percent disability compensation and with a disability rating of 100 percent would be eligible for this exemption.

You must make application to your local appraisal district between Jan. 1 and April 30. You may download and print Form 50-114, Application for Residence Homestead Exemption from the Comptrollers website.

How Divorce Affects Va Benefits

Most monetary VA benefits, such as disability compensation and veterans pensions, simply remain with the eligible veteran following a divorce because payment is based entirely on their qualifying military service. A spouses VA health care benefits through the Civilian Health and Medical Program of the Department of Veterans Affairs also terminate upon the dissolution of the marriage to the eligible veteran. As a rule, only current or surviving spouses and dependents factor into VA benefits decisions.

Va Disability Benefits Are Not Considered An Asset In A Divorce

The Uniformed Services Former Spouses Protection Act exempts VA disability benefits from being divided during a divorce. In other words, VA disability compensation is not an asset that a judge can divide as marital or community property. It is important to note that this is different than the treatment of military retirement benefits, which can be a marital asset subject to division by a family court.

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How Is Alimony Different From Child Support For Veterans

Alimony is a court-ordered monthly cash payment paid to an ex-spouse.

These payments are put into place to make up for any shortfall in splitting communal assets in a marriage.

Alimony is based on the premise that both members of the marriage are responsible for supporting one another.

Alimony is governed by the state and local laws the divorce is tried in.

Factors that are considered when determining the level in which a spouse must be compensated include the health of spouses over the course of the marriage, any financial burdens the spouse took on over the course of the marriage for the betterment of their partner, and how much responsibility spouses took on in maintaining the household.

In contrast, child support payments are made by the non-custodial parent for the narrow purpose of supporting a service members children. These payments, unlike alimony, and can only be applied to child-related expenses like medical bills, clothing, and food.

Whereas alimony can be spent on whatever the spouse deems appropriate.

These payments are also governed by the state and local jurisdiction the divorce is tried in, but these payments are typically determined by comparing the overall cost of a childs expenses and the ex-spouses income.

Understanding Divorce In The Military

Can I Receive Disability Benefits if My Deceased Spouse ...

Some of this content is provided courtesy of USAA.

Legally, military personnel who are getting divorced are no different than anyone else, so the procedural process is the same. If you are in the military or are a military spouse, there are some additional factors that can affect your divorce.

For instance, the process may take longer if one of you is on active duty in a remote area or have a permanent station overseas. Some states have relaxed the residency requirements for active duty service personnel who want to file for divorce in the state he or she is stationed.

Besides understanding the basic divorce process, military couples should be knowledgeable about the role of the Uniformed Services Former Spouses’ Protection Act. The USFSPA provides a federal statute for the military, guiding them to accept state statutes on addressing issues, such as child support, spousal support and military retirement pay/pension. While states have always had the authority to treat retirement and pension plans just like any other marital asset, the USFSPA permits the states to classify military retired pay as property, as opposed to income.

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Indemnity Or Offset For Va Waiver

May a state court order a retiree who waives retirement to receive disability to indemnify the former spouse for the reduction in that spouses share of the retirement?

No, according to a unanimous 2017 U.S. Supreme Court decision, Howell v. Howell, 137 S.Ct. 1400 . SCOTUS made clear that states not only cannot divide disability directly , but cannot do it indirectly either by ordering dollar-for-dollar indemnity.

Prior to Howell, federal law had long prevented states from dividing VA disability payments. Mansell v. Mansell, 490 U.S. 581 . Colorado has similarly ruled that divorce courts cannot divide VA disability payments, nor require the servicemember to indemnity the spouse for a VA waiver of retired pay that happened prior to dissolution. In re Marriage of Franz, 831 P.2d 917 .

The majority rule among the states had been that the federal prohibition on dividing VA disability did not preclude a state from ordering the retiree to indemnify the former spouse for the resulting VA waiver, under the theory that once the former spouse has a vested interest in the retirement, the military member cannot unilaterally reduce the other spouse’s share by applying for VA disability. In other words, once the spouses were divorced, if the member then converts a portion of retirement to disability, he/she would owe the former spouse indemnity for any VA waiver.

Champva For Spouses Of Totally Disabled Veterans

VA will also provide health care insurance coverage for the spouses of certain totally disabled veterans under the Civilian Health and Medical Program, or CHAMPVA. In order for spouses to be eligible, the disabled veteran must meet one of the following criteria:

  • Rated permanently and totally disabled due to a service-connected condition
  • Died on active duty, in line of duty
  • Died from a service-connected disability or
  • Was rated permanently and totally disabled due to a service-connected condition at the time of death

Importantly, to be eligible for CHAMPVA, spouses of disabled veterans cannot be eligible for TRICARE . CHAMPVA benefits are also extended to spouses ages 65 and older if certain eligibility requirements are met. With CHAMPVA, spouses of disabled veterans will be covered for services and supplies when VA determines they are medically necessary and were received from an authorized provider. Examples of covered services include the following:

  • Ambulance service
  • Skilled nursing care
  • Transplants

Essentially, CHAMPVA will cover the cost of any medical service that is deemed medically or psychologically necessary. This benefit is very important considering the high costs of medical care. As such, CHAMPVA can make a huge difference for the family of a disabled veteran, particularly for the spouse, if they can get entitlement to these benefits.

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Can A Former Spouse Still Receive Benefits After Divorcing A Veteran

The first thing to understand is that there are different types of benefits available to two different types of U.S. military members.

One group is military veterans, who served in active duty and were then discharged under conditions other than dishonorable. These vets receive health, financial and burial benefits through the U.S. Department of Veterans Affairs .

The other group is known as military retirees. These individuals are also veterans, but in a different sense. They have completed at least 20 years of active service or have medically retired from the armed services due to a disability. Military retirees receive retirement pay from the Defense Finance and Accounting Service of the Department of Defense and medical coverage through the TRICARE program.

How Do I Apply For Dic

Can My Spouse Get Part of Veterans Disability Payments?

After the death of your military spouse, a VA Casualty Assistance Officer may submit an application for DIC for you. Or you can complete a DIC application online. You can download the application, Form 21-534, at www.va.gov/vaforms. You will also need to notify the VA, if you haven’t already, that your spouse is deceased. Do this by completing a Report of Casualty, DD Form 1300.

Fax or mail your DIC application, along with the Report of Casualty, to

Department of Veterans AffairsRegional Office and Insurance CenterP.O. Box 8079

FAX: 381-3084

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Ive Heard That Most Veterans Cannot Find Representation And Attorneys Turn A Blind Eye To Them The Attorneys Know That If They Represent The Spouse They Can Go After A Veterans Disability Compensation In A Divorce Settlement And Their Client Will Win The Ability To Pay Them Is That True

Not at all. First of all, veterans and spouses have the same problems in finding representation. Divorce cases can be expensive when contested, especially if there are complex issues such as VA disability payments on the table. That costs money, and both husband and wife will need to find the funds to retain a lawyer or else go without representation. Lawyers as a group are not turning a blind eye toward veterans or spouses.

Most intelligent attorneys know that VA benefits are off-limits as marital or community property upon divorce. These payments cannot be divided as marital assets in the divorce or property division hearing. Whats the sense in going after an asset which is exempt from division?

In addition, its difficult to find a good attorney who would get paid through the promise of future income. You cannot pay bills on promises. You cant pay your office staff on the hope that, at some point in the future, the other side will be required to make payments of alimony or child support. Most lawyers would go broke very quickly if that were the way they did business.

Va Benefits Can Be Garnished Only For Spousal Or Child Support And Only Under Certain Conditions

Many disabled veterans become concerned about how much of their VA income they may lose during and after a divorce, due to property division, alimony, and child support. This article will address these issues.

Each state has its own laws governing divorce, child support, and alimony. But there are also federal laws governing the distribution of veterans benefits, and state family law courts are required to adhere to these laws. Federal law provides certain protections for veterans benefits.

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Applying For Spousal Disability Benefits

If your husband or wife’s disability claim has already been approved, call the Social Security Administration at 772-1213 to apply for the spouse’s SSDI benefit. You must provide the SSA with your birth certificate, your marriage certificate, your Social Security number , and your bank’s routing information for direct deposit. If you are applying for a survivors benefit, you will also need to provide your deceased spouse or ex-spouse’s death certificate or other proof from the funeral home.

Life Insurance Benefits For Surviving Spouses

How To Get 100% VA Disability Rating

As military spouses who are eligible for VA benefits for spouses, you may be able to convert your spousal insurance coverage into an individual plan with a private insurance provider within 120 days of the Veterans end of military services. And you do not need to provide evidence of good health.

If you are a spouse nominated as a beneficiary of VGLI, SGLI, TSGLI or FSGLI coverage programs, you may use VAs beneficially service for counseling and online Will preparation. This will help you avoid seeking any legal counsel and pay the hefty fee to a lawyer.

If you have insurance under VGLI and SGLI, the VA may also offer you an accelerated benefit. This allows you access to half the money limit of your insurance policy if you have a terminal illness or are diagnosed with less than nine months of life expectancy.

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Vas Comprehensive Assistance For Family Caregivers Program And Qualifications

VA also offers the Comprehensive Assistance for Family Caregivers Program . The Caregivers Assistance Program began in 2011, but is currently being expanded under the VA Mission Act. This program was implemented in an effort to provide benefits to caregivers . Caregivers are provided monthly compensation, medical training, and healthcare benefits. To be eligible for the Caregivers Assistance Program, the veteran must have suffered a serious injury that impacts their activities of daily living. Examples of serious injuries may include traumatic brain injury , post-traumatic stress disorder , or the loss of a limb. Up until this point, the Caregivers Assistance Program has only applied to veterans who served on active duty on or after September 11, 2001 .

Pay Grade At Retirement V Pay Grade At Divorce

Because regular military retired pay is currently not vested until 20 years of service, it is calculated based on an individual’s pay grade and years of service at the time of retirement. In some divorce cases prior to 2017, divisible retired pay was calculated based on years of service at the servicemember’s retirement, even if the divorce occurred many years prior to the retirement. Some were concerned that the division of the retired pay at the time of retirement and not at the time of divorce created an inequity for the servicemember and subsequent spouses. This issue was raised by DOD and others in the initial consideration of the USFSPA. As stated by Dr. Lawrence J. Korb, then-Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics with regard to the proposed bill,

I believe the provisions in the first section in this bill to divert up to 50 percent of a servicemember’s disposable retired pay would be inequitable unless the 50 percent limit is computed as if the member could retire at the time of the final court order. Pay increases for promotions and longevity from the data of divorce to the date of retirement would substantially increase a serviceman’s retired pay. If subsequent raises could be included, they would constitute windfall benefit for the former spouse to which he or she had made no contribution.50

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Applying For Dea Benefits

In some cases, veterans will see language such as eligibility to dependents Chapter 35 DEA / CHAMPVA are established in their decisions from VA. Here, VA has granted DEA because the veteran has a disability that has been deemed permanent and total . However, before DEA benefits can be distributed, either the veteran or their spouse is required to fill out a specific application and submit it to their local Regional Office.

Va Compensation For Veterans With Spouses In Need Of Aid And Attendance

Spouse & Child Penalty in VA Disability Claims

Disabled veterans are eligible for additional monthly compensation for qualifying dependents if their combined disability rating is 30 percent or higher. Qualifying dependents include children under 18 years old children between ages 18 and 23 years old and still in school spouses and dependent parents. Additional VA compensation is also provided to disabled veterans with spouses who are in need of regular aid and attendance. Specifically, if the spouse is a patient in a nursing home or blind, or so nearly blind or significantly disabled as to need or require the aid and attendance of another person, the veterans amount of monthly compensation will increase.

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Va Survivors Pension With Aid And Attendance

Surviving spouses receiving VA Survivors Pension may also be eligible for aid and attendance benefits if they need help with daily activities. Aid and attendance benefits provide monthly payments added to the amount of your monthly Survivors Pension. To qualify for these additional benefits, at least one of the following must be true:

  • You need another person to help you perform daily activities, like bathing, feeding, and dressing, or
  • You have to stay in bed or spend a large portion of the day in bed because of illness, or
  • You are a patient in a nursing home due to the loss of mental or physical abilities related to a disability, or
  • Your eyesight is limited

Housebound benefits also provide a monthly payment in addition to that which you receive for Survivors Pension. If you spend most of your time in your home because of a permanent disability, you may be eligible for this benefit. However, you cannot receive aid and attendance benefits and housebound benefits at the same time.

Military Disability Retired Pay

Military disability retired pay is available for service members who are sufficiently disabled that they can’t perform their duties. Members that have enough creditable service may be placed on the “disability retired list” and draw disability retired pay. Military disability benefits are notconsidered “disposable retired pay” and cannot be divided between spouses in divorce court.

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Direct Payment Of Military Retirement From Dfas

As indicated, military retirement may be divided by a court regardless of the duration of marriage. But as long as the couple was married for at least 10 years during the members career, DFAS will pay the former spouses share directly to the former spouse. This so-called 10/10 Rule has created a myth that spouses with fewer than 10 years of marriage are not entitled to a share of the military retirement. For more information, see the Direct Payment of Military Retirement from DFAS article in the Military Divorce Guide.

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