Veteran Benefits Are Protected From Creditors But Are They Protected Against Your Ex
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 ofRose v. Rose. The court made it clear that the anti-attachment clause of Title 38 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.
Va Disability Payments Are Income
The Colorado Court of Appeals just issued a new decision in what it characterized:
As a matter of first impression in Colorado, whether a provision of the Uniformed Services Former Spouses Protection Act prohibits a trial court from including a parents veterans disability benefits in that parents gross income when calculating a child support obligation.
M.E.R.-L.In re: Parental Responsibilities of M.E.R-L and D.L.R-L, 2020 COA 173, ¶ 2.
It came as somewhat of a surprise to me that this issue was even in doubt as we discuss in our VA Disability article in the Military Divorce Guide, Colorado Courts have long approved of treating VA disability payments as income for the purposes of family support. And the reality in court is that judges have included disability benefits as income in every case weve seen at Graham.Law.
However, the primary case where VA disability payments were found to be properly included as income for purposes of alimony had very little analysis or discussion. Nevil.In re: Marriage of Nevil, 809 P.2d 1122 . The Colorado Court of Appeals has now fully addressed the issue of whether VA disability should count as income for purposes of child support, with a full analysis of the objections raised.
Paying Support With Veterans Apportionment
If you pay child or spousal support and receive retirement or disability from the Veterans Administration, you can ask for a portion of the benefit to be sent directly to a custodial parent or former spouse for child support.
Once this benefit is established, you can ask for a modification of your child support order to get a dollar-for-dollar credit on your child support order calculation for future payments.
If the apportionment is already in place, you can request a credit for previous benefits along with the modification.
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When Va Benefits Can Be Garnished
Your VA benefits are protected from being garnished to pay unpaid taxes and most creditors’ claims, but in certain circumstances, VA benefits can and do get garnished. This is because the purpose of VA benefits is to provide support not just to a veteran, but to his or her family.
If you fail to make alimony and child support benefits, the state can sometimes order your VA benefits to be garnished. This can be done because Congress specifically set out in Title 38 that VA benefits are intended to be used to provide support for dependents. The amount that can be garnished will vary based on how many dependents you have to support.
However, your VA disability compensation cannot be garnished at all unless you waived part of your military retired pay in order to receive VA disability benefits. In other words, if you waived part of your taxable military retirement to receive nontaxable disability compensation, your disability benefits can be garnished to meet alimony and child support obligations. Only the amount of the disability compensation you were paid in place of retirement pay can be garnished. The remainder of your disability compensation is protected.
What Do I Do After My Va Disability Benefits Are Applied For Child Support
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Consideration Of Va Income
Even if your VA benefits can’t be garnished because you didn’t waive any military pay or because of any of the above reasons, in most states your VA income can still be considered by the judge in deciding your support obligations. If your VA disability benefits are a significant part of your total income, you may end up using your benefit income to meet child support or alimony obligations.
For legal help in protecting your VA disability benefits or establishing a fair amount of support, contact a VA disability lawyer.
Can Va Disability Compensation Be Used To Calculate Child Support Or Income
While courts typically protect benefits from the U.S. Department of Veterans Affairs from some collection activities, these protections don’t extend to child support payments in most states. When you divorce, the court calculates the individual income of both parents when determining if child support payments are necessary. Most of the time, VA benefits are included as income in these calculations.
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Subd 20support Money Child Support
“Support money” or “child support” means an amount for basic support, child care support, and medical support pursuant to:
an award in a dissolution, legal separation, annulment, or parentage proceeding for the care, support and education of any child of the marriage or of the parties to the proceeding
a contribution by parents ordered under section or
support ordered under chapter 518B or 518C.
Other Factors That Affect Va Benefits
Because all of your income and liabilities affect each other, it is essential to understand the different circumstances where your VA benefits can be impacted. If you face other debts and responsibilities, the amount of child support you may be required to pay could also be affected.
Property Division in Divorce
In your divorce case, it is up to the judge to divide the marital assets between you and your soon-to-be ex-spouse. Your VA disability benefits are not considered an asset for divorce purposes, even if you were married at the time of your service. The court treats these benefits differently than military retirement benefits, which may be considered marital property by most courts.
You are not required to pay taxes on your VA disability benefits. That differentiates VA benefits from other military benefits, such as the housing allowance. While the housing allowance is also not taxable, it can be considered an asset in your divorce case. It is important to note that the judge in your divorce case looks at your entire financial picture when determining child support obligations. If you receive a high amount of benefits that are not taxable or considered assets, the court might grant more child support than usual.
Divorce is never easy, but we can help.
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Application For Va Disability
VA disability payments are not automatic – as with everything else in the military, there is a process, and this one requires that the retiree affirmatively apply for disability payments. 38 U.S. Code § 5101. The specific form used is the VA Form 21-526, Veteran’s Application for Compensation and/or Pension.
A VA disability election is revocable, per DOD Financial Management Regulation, Volume 7B, Section 120205. Presumably a veteran would have little incentive to do this, unless to facilitate receipt of Combat-Related Special Compensation . Doing so requires filling out the same VA Form 21-526.
Va Disability In A Divorce
When a veteran has a service-connected disability, she may be entitled to receive VA disability payments from the Department of Veterans Affairs. If the disability rating assigned by the VA is under 50%, then a retired member must waive retirement, dollar for dollar, to receive VA disability.
Why waive retirement to receive disability? Two reasons – first, disability is not taxable, and second, the payments are not divisible by the a domestic relations court.
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Can Va Disability Benefits Be Used To Calculate Child Support
Yes, VA benefits can be used to calculate child support payments. Most states consider VA disability compensation as income, so these funds are considered when calculating child support payments.
If you want to know for certain, do an internet search to find out if your state includes VA benefits in its definition of income.
Handling Your Child Support Duties As A Disabled Veteran In Texas
If you have served our country as a member of our military you know the true meaning of sacrifice. You have given your all for a cause larger than yourself and for that, you should be commended. The services that you have provided to the United States go beyond what your duty was in the military. However, your obligation to the country did not cause your personal life to stop until you were ready to devote your attention to it.
It is possible that you suffered an injury while you were serving in the military and are now disabled. Whether that disability was determined by the military, the Social Security Administration or both, you are unable to work as you used to be able to. As a result, you may not have as much income as you had become accustomed to. What can you do in the event that you have a child support obligation but have recently been found to be disabled?
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What Counts As Income For Child Support In Ohio
This article is written by Virginia Cornwell, an Ohio Child Support Attorney and Ohio State Bar Association Certified Family Relations Specialist.
People often want to know what counts as income according to the Ohio child support guidelines worksheet. There are a lot of myths bouncing around about what does and does not count as income. Ohio Revised Code 3119.01 gives the definition of gross income that the law requires your county Child Support Enforcement Agency or the Court to use when they figure out how much child support you will owe or receive. That statute says that the following things DO count as income for Ohio child support:
- overtime pay, bonuses and commission
Income For Child Support
Child support payments are typically based on a calculation involving each spouse’s income. These calculations are based on state guidelines, and each state’s courts can set child support in different ways. Generally, monetary veterans benefits, like disability and retirement pay, are considered income for child support purposes. Thus, even if your ex-spouse is not employed and has no other income, he can still be ordered to pay child support based on his income from veterans benefits. Non-monetary benefits, such as medical care or commissary privileges, are typically not included as income.
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Get Help With Your Application
The staff at any VAC office, CAF Transition Centre or Service Canada office can assist you or call us at 1-866-522-2122. Service Officers with The Royal Canadian Legion or The War Amps of Canada can also assist you with your application, including helping you get all of the information you need to support your application. Their assistance is free of charge.
Are There Veterans Scholarships For Children In Florida
Florida also provides scholarship opportunities for dependent children and spouses of veterans who died from a service-connected disability or who are 100 percent service-connected permanent and total disabled veterans through the Scholarships for Children and Spouses of Deceased or Disabled Veterans program.
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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
- school expenses
D. What happens next?
Garnishing Disability Benefits For Child Support Payments
In some cases, disability benefits may be garnished to pay current or back child support payments. While this may seem unfair to the parent with a disability, the state takes very seriously the need to maintain regular child support payments.
Parents who owe child support and who receive disability benefits should be aware that the courts can dip into those benefits and formally garnish them before they even get to you. This makes it virtually impossible not to pay at least part of your regular child support payments. It can also make paying other bills or buying groceries extremely difficult when trying to get by on the remaining amount.
Another type of disability benefit is Supplemental Security Income . This government program provides financial support to disabled individuals with lower incomes. If a parent’s wages are paid directly by SSI, they cannot usually be garnished for things like child support. However, the benefit can be garnished for nonpayment of child support if the parent is receiving Social Security Disability Insurance .
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What Is Gross Income For Ohio Child Support Purposes
For the first time in about 25, years, there is an updated version of the Ohio Child Support Guidelines. There have been a number of changes intended, quite literally, to bring the guidelines into the 21st century. The cost of living increased nearly 42% in the ten years from 1982 to 1992 from 1992 to 2016, it has increased 99.5%! Clearly, it was necessary to bring the child support guidelines in line with economic reality. In Ohio, child support is calculated using an income shares model, starting with gross income. What is gross income for Ohio child support purposes?
Gross income includes the total of all earned and unearned income from all sources in a calendar year. This includes income that is not taxable. As you would probably expect, gross income includes income from salaries, wages, overtime pay, and bonuses. It also includes tips, commissions, royalties, and dividends.
Other types of income included in gross income are:
- Severance pay
- Unemployment insurance benefits
- Disability insurance benefits
- Service-connected veterans benefits that are not means-tested and that have been received by and are in the possession of the veteran
- Spousal support that was actually received
As you can see, gross income encompasses many things. At this point, you may be wondering if there is any type of income that does not count toward gross income for Ohio child support purposes.
Child Support Alimony And Va Disability
Generally speaking, alimony is a court-ordered legal obligation for one person to provide financial support to their spouse or ex-spouse after separation. Typically, it terminates if the spouse who is receiving that financial support remarries. Nonetheless, it is a way for one spouse to support the other and ensure that they can provide for the child. On the other hand, child support is basically an agreement that is made between the two parties, usually in a court setting with a judge. Child support orders one spouse to pay the other spouse who is likely in primary physical custody of any minor children. Similar to alimony, this monetary payment is intended to help support the raising of those kids and to give them some sort of financial benefit to help pay for food, clothing, transportation, etc.
Importantly, VA benefits can be taken into account when the court is looking at a veterans income for child support and alimony purposes. That is, VA benefits would be counted towards a veterans income when calculating child support payments. It is also important to consider the fact that VA benefits are tax-free. Therefore, the entire amount of the veterans disability compensation would be considered in a family courts determination of child support.
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