Child Support And Alimony
Federal law protects your VA benefits from being garnished to pay regular creditors claims, but VA benefits are sometimes garnished to pay alimony or child support. That’s because VA benefits are intended to support the veteran’s family, not just the veteran veterans are paid higher monthly benefits if they have a spouse or children.
The maximum amount that can be garnished dependents on how many dependents you have to support, but generally no more than 20% to 50% of your benefits can be garnished. Your benefits cannot be garnished, however, if the garnishment would cause you undue financial hardship. Also, your ex-spouse or child must have filed a form asking for an “apportionment” of your benefits before garnishment will be considered.
Is It True That These Payments Are Exempt From Taxation From The Claim Of Creditors And 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
Yes, except that you forgot the most important part of the statute, 38 U.S.C. § 5301 the phrase except to the extent specifically authorized by law. See the full quote below :”Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and 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.”
Are Activist State Judges Forcing Many Disabled Veterans Going Through A Divorce To Use Their Veterans Disability Compensation To Pay Alimony Or Else Face Contempt Charges And Jail If They Refuse
The summary of Rose v. Rose above is one illustration of how a veteran tried to get out of paying child support and found that every court which reviewed his case upheld the trial judges decision that he must support his family and obey the courts order, even though his only income was his VA payments. The same principle applies to alimony. There is no justification in disobeying a judge whose ruling is based on the well-recognized decision of the U.S. Supreme Court. If you refuse to pay as the judge ordered, youll very likely be punished by the court and that is the way it should be for those who violate the law or disobey court orders.
Theres no way that any reasonable person would consider the U.S. Supreme Court to be composed of activist judges. As to state courts well, lets take a look
The states are virtually unanimous in their rulings on this. Its a real stretcher to say that all of these courts are all packed with activist judges.
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How Is Va Benefits Garnishment Established
When a Veterans disability benefits are subject to garnishment, the VA will work collaboratively with a Veterans Service Center and/or a court to both legally withhold disability compensation and make payments in compliance with court garnishment orders.
The process will usually look something like this:
- The VA regional office receives a court garnishment order involving a Veteran who already receives VA disability benefits .
- The regional office delivers a copy of the court order to the local finance officer.
- The finance officer then reviews the claims folder and determines appropriate withholdings. They are responsible for notifying the Veteran of the pending garnishment.
- The financial officer gives the Veteran a copy of the garnishment order and a description of the garnishment process. They also provide the Veteran with information about the monthly garnishment amount.
- The VSC then starts withholding garnishment amounts from the Veterans disability benefits checks.
The timeline for this process can vary significantly from case to case. Furthermore, this timeline does not include the appeals process Veterans may appeal the garnishment decision, but it could affect how
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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Failure To Make Child Support Or Alimony Payments
A failure to make child support or alimony payments is regarded as unacceptable by many courts and the VA. The IRS may garnish VA disability benefits to support these financial obligations.
Garnishment amounts depend on the military Veterans retirement pay status. The IRS can only garnish VA disability benefits if:
- The person receiving the benefits has waived retirement pay from the military to obtain compensation AND
- The amount of disability compensation is paid in place of military retired pay
In other words, a Veteran receiving retired military pay cannot have their wages garnished. The IRS may garnish military retired pay instead.
What Is The Process For Granting An Apportionment Can I Object Even If I Have Been Ordered To Pay Child Support
Yes, you can object to an apportionment even if you have been ordered to pay child support. You can slow down the process if you object to the apportionment. However, you must make sure that you give the VA any information that it requests about your finances. Your financial situation is a very important piece of information in this process. Go to Apportionment section below if the VA has begun the apportionment process against you.
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How Much Of A Veterans Benefits Can Be Garnished
The VA and/or a presiding court will determine how much of a Veterans disability compensation can be garnished based on a few major factors, including:
- Whether the Veteran has additional sources of income. For instance, if the VA disability compensation amounts are the only source of income for a Veteran, medical debts, credit debts, student loans, and taxes may not be garnished.
- Whether the Veteran has any special needs that may require additional income
- How much income is already available to the Veterans former spouse and/or dependents
- Whether the Veterans former spouse and/or children have any special needs that may require additional funds
Because of the variability of these factors, VA disability benefits garnishment is never the same between two individuals. That said, most VA disability benefits are only garnished between 20% and 50% of total benefit amounts.
Typically, the IRS garnishes between 20% and 50% of the VA benefits used to support their former spouse and/or children. Lower than 20% is typically considered too little to be of use to a Veterans dependents, and 50% is often considered too restrictive or cause undue hardship to the Veteran in question.
Ive Heard That Congress Clearly Intended To Protect Veterans Benefits From Being Awarded To Anyone Other Than The Veteran Who Earned Those Benefits Under Any Circumstances
This myth has been making the rounds recently. Like the stories of Bigfoot, Shangri-La and the Loch Ness Monster, it has a core of believers. And like these examples, its not true. Congress wrote the law on veterans benefits, found at Title 38 of the U.S. Code, with an eye toward exempting VA benefits from most creditors claims ordinary creditors are barred from execution or garnishment of VA payments. But family members are not ordinary creditors. They are, in fact, the subject of special protections in Title 38, both for child support and alimony.
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What Does The Electronic Benefits System Mean For Me
Starting on May 1, 2013 all Social Security and VA benefits recipients will get their benefits electronically. Paper checks will no longer be available. You will have two options for receiving payments:
- Direct deposit into your bank account, or
- If you do not have a bank account, you may enroll in the governments Direct Express Debit MasterCard program. You can use this card to make purchases, pay bills or get cash at ATMs.
There is a hardship waiver, but the rules make it difficult to claim a “hardship.” Generally, waivers will be limited to those with mental impairments and those in very remote areas . However, anyone born before March 1, 1921 and still getting a paper check as of February 28, 2013 may choose to continue getting paper checks.
Note: A third option is to have your benefit deposited on another brand of “pre-paid” card. Although banks and others may be marketing these cards to low-income people for this purpose, we do not recommend them over the Direct Express Debit MasterCard program. Most include numerous fees and charges. Read more here.
The federal government has negotiated with the Direct Express group for a card with fewer fees. See more about the “Direct Express” card fees below.
Why Does The Va Claim That Its Not A Law Enforcement Agency And Thus Cannot Enforce Title 38 In Divorce Courts
Thats because
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My Ex Has Made A Claim For Apportionment What Happens Now
A. Starting the process – When will the Veterans Administration NOT allow an apportionment?
The VA cannot grant a claim for an apportionment if:
- The amount of your benefits is too small to be divided between you and your children or
- Another person has legally adopted your children to the adoptive parent.)
- The beneficiary is the one who is requesting the apportionment. You cannot ask the VA to send part of your check to your children.
B. If the VA decides that it can grant the claim, what happens next?
If none of the three exceptions above apply, then the VA must gather evidence on these two issues:
This evidence about the children’s needs must be provided by the person who is claiming the apportionment for child support. You must provide the information about your financial situation. The VA will send forms to both of you to fill out. This form asks you for information about ALL of your income and assets and all of your expenses.
- any money that you earn by working
- any Social Security benefits that you receive
- any retirement or pension benefits that you receive
- any public benefits that your receive, such as welfare benefits, TANF, or food stamps
- any money you have in bank accounts
- any money you have in a retirement plan, IRA or 401
- stocks and bonds
- real estate
- all utilities: water, gas, heat, electricity, telephone
- clothing
- school expenses
D. What happens next?
How To Fight Apportionment
After a decision is issued, either the veteran or the person filing for the apportionment can appeal VAs decision if they are unhappy with the outcome. Namely, the person filing for the apportionment can argue that the monetary amount decided on is too low to support their family. The veteran can appeal for a hardship reduction on the grounds that the apportionment will create a financial strain.
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If I Have Other Questions What Should I Do
See a military legal assistance attorney or private attorney as soon as possible. Your lawyer can answer many questions and help you to make a fair and intelligent decision about your choices, options and alternatives.
* * *The LEGAL EAGLE series of client handouts is prepared by Mark E. Sullivan , a family law attorney in Raleigh, N.C.
What Exactly Does The Statute Say About A Third Party Getting At Benefits Paid By The Department Of Veterans Affairs
Title 38, U.S. Code, Veterans Benefits, says at §5301 Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and 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.
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Things Not Covered By Garnishment
Apart from the expenses mentioned above, the federal government or any other entity cant garnish your disability benefits for virtually any other purpose. This means that if you have outstanding credit card bills or a car loan that is due, the creditors cant get legal access to your disability benefits.
Can A Debt Collector Garnish My Social Security Disability Benefits
Millions of people across the nation rely upon Social Security Disability benefits every single year. These benefits are the only lifeline available to many who have suffered debilitating accidents, injury or illness. They are also very often not enough to pay bills and entirely make ends meet. This leads to the terrifying thought of bill collectors garnishing wages to recover debts, which can leave people in dire situations.
Many people are understandably curious as to whether debt collectors can garnish or take their social security or VA benefits, reducing them to the point where its tough to live. The answer to this question is, unfortunately, more complicated than most realize. Lets explore what happens when a debt collector wishes to garnish the social security disability benefits you receive, whether it can happen, and what you can do.
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Some Things To Think About With Va Disability Benefits And Child Support:
You, as the Veteran has most of the control of how the outcome will be. Similar to homework, you have to do the research and due diligence. By properly seeking help and asking your local VA for information, you will handle surprises better than if you did not find for help. The most important thing is to document all of the information that you encounter with your former spouse. It is easy to confirm verbally, but with no documentation, you will face an uphill battle.
Direct Express Card Vs Bank Account: How Do I Choose
Again, fees for using the “Direct Express” card – along with the tips above – may be the least expensive alternative. But if you would prefer to open a bank account, shop around and make sure that you understand all of the fees before you open an account. Also, we recommend that you avoid accounts with overdraft fees. And do not opt for overdraft “coverage,” when offered.
Be wary of other pre-paid cards. They tend to have high fees. Read more here.
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Can Va Disability Benefits Be Garnished
Veterans are often concerned about how much of their VA disability compensation they may lose during and after a divorce, due to property division, alimony, and child support. Each state has its own laws governing divorce, child support, and alimony however, there are also federal laws governing the distribution of VA benefits and whether they can be garnished. Importantly, these federal laws provide certain protections for veterans disability compensation and benefits.
Can Social Security Disability Be Garnished For Credit Card Debt
Generally no, debt collectors cant take your Social Security or VA benefits directly out of your bank account or prepaid card. After a debt collector sues you for the debt and wins a judgment, it can get a court order for your bank or credit union to turn over money from your account or prepaid card.
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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.
Sending Or Terminating An Iwo For A Va Benefit Payment
Department of Veterans Affairs
In addition to the garnishment of benefits discussed above, statutes and regulations also provide for the apportionment of VA benefits to provide spouses and dependents with financial support under certain circumstances. Examples #2 and 3 below explain this option further:
Example #2:38 U.S.C. § 5307 Visit disclaimer page and VA regulation 38 CFR 3.450 Visit disclaimer page provide that if the veteran is not residing with a spouse or children and the veteran is not reasonably discharging a responsibility for the spouse’s or children’s support, then the veteran’s pension, compensation, or emergency officer’s retirement pay may be apportioned. An apportionment is not made if it would cause undue hardship to the veteran or in certain other circumstances specified by statute or regulation. The VA determines whether to apportion VA benefits according to regulations found at 38 CFR 3.450-3.461 Visit disclaimer page.
Follow these steps to request an apportionment:
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