Apportionment Of Va Disability Benefits
Apportionment happens when the VA assigns a specified portion of the veterans disability benefits to one of their family members. Alimony and child support payment will only be garnished after the former spouse applies to receive their apportioned share.
After the application for apportionment has been filed, the VA decides whether theyll grant the claim. If its awarded, the share will then be paid monthly to the family member, thus reducing the amount that the veteran gets.
Court Ruling Affects Divorced Spouses Of Disabled Veterans
The world of Department of Veterans Affairs benefits is complex, and no less so when it comes to dividing those benefits with a divorced spouse. A recent Supreme Court decision, Howell v. Howell, created new rules for states to follow when deciding how to divide retirement pay which has been reduced by a veterans disability waiver. This blog provides an easy guide to how the Courts decision will affect you.
U.S. Supreme Court
Spousal Support & Va Benefits
A vast gulf emerges between equitable property division and spousal support.
Virginias Lambert v. Lambert court case showed that, while disability benefits cannot be divided, they can be considered income to the military spouse, and therefore can be used to calculate spousal support payments.
Spousal support is not intended as a punishment against the paying spouse or as a reward for the receiving spouse. The payments are meant to treat the receiving spouse fairly, to provide for her continued style of life and comfort until she is able to support herself.
The courts have repeatedly affirmed that Virginia spousal support calculations will include all sources of income, including military retirement and VA benefits. VA benefits are especially protected by law, since, as the Virginia Court of Appeals itself said,
V.A. benefits, unlike military disability retirement pay, are nonassignable, are exempt from the claims of creditors and are not liable to attachment, levy, or seizure under any legal or equitable process.
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Disability Benefits For A Disabled Surviving Divorced Spouse
If you are disabled and divorced from a former spouse who has died, you may qualify for benefits as a surviving divorced spouse based on the deceased ex-spouses account.
Requirements for this program are much like the above criteria for a widow or widower, with the following major difference: the duration of marriage requirement is a minimum of 10 years.
Note: If you are divorced and remarry after a separation of one year or more, then the 10 years must be restarted. Example: You are married for 4 years, divorced for 2 years, and remarry the same person for another 6 years and get divorced again: While you may have been married to the same person for 10 years, you would not be an eligible surviving divorced spouse.
Note: The 10-year rule can be waived if you are still caring for a child from the marriage who is under the age of 16 or is disabled.
What Is The Difference Between Spousal Benefits And Survivor Benefits
Spousal benefits are based on a living spouse or ex-spouses work history. Survivor benefits are based on a deceased spouse or ex-spouses work history. If divorced, you may still be able to apply for benefits based on your ex-spouses work if you were married at least 10 years and are currently unmarried.
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Consult Coker Robb & Cannon
Due to special rules regarding the division of retirement benefits, divorces that involve military and veteran benefits can be particularly challenging to sort out. Whether you are a military service member or their spouse, you should consult an experienced attorney from Coker, Robb & Cannon, Family Lawyers to help make sure your property is properly divided according to law.
To schedule an appointment with one of our skilled attorneys, call us at or contact us online today.
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.
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Tricare Coverage Under The 20/20/20 Rule
To keep coverage under Tricare, the former military spouse must register with Tricare under their name and social security number, not your former married name or ex-spouses name. It requires the following documentation:
- Original marriage certificate
What If The Disabled Spouse Is Not Collecting Benefits
If your disabled ex-spouse hasn’t yet filed a disability claim for SSDI, the rules are a bit more complicated. You can collect SSDI only if both you and your ex-husband or ex-wife are 62 years old or older, you were married at least ten years, and you have been divorced for at least two years . This is true as long as your disabled spouse is eligible for SSDI under the medical disability rules in certain circumstances, the disabled spouse may not need to be eligible under the non-medical eligibility rules. Specifically, the disabled spouse may be allowed to make more earnings than would be allowed under a claim for his or her own disability benefits.
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Continued Health Care Benefit Program
Although Tricare for Life is not available for all former spouses, they do provide those who have not remarried with this transitional health insurance in order to bridge the gap between military medical coverage and civilian medical coverage. This program is called the Continued Health Care Benefit Program .
They must elect CHCBP within 60 days of losing Tricare coverage. Unless specific criteria are met, former, unmarried military spouses are permitted up to 36 months of coverage.
To be eligible for unlimited CHCBP coverage, the former partner must meet the following criteria:
- Enrollment as a family member in an approved health care benefits program like Tricare/DEERS within 18 months before the divorce.
- Did not remarry before the age of 55 years old, and
- Is receiving a portion of the military members retirement or has a court order for SBP coverage.
What Benefits Can Divorced Spouses Receive
The ex-spouse of a military veteran may be eligible for some or all of the benefits described below.
Health Benefits: Former spouses maintain eligibility for VA health insurance and other benefits if they meet the 20/20/20 rule. They must have been married to the military veteran for at least 20 years, the veteran must have at least 20 years of military service, and the military service and marriage must have overlapped by at least 20 years. Additionally, the former spouse cannot have remarried or have access to an employer-sponsored health insurance plan.
The former spouse may receive only one year of TRICARE coverage if the marriage and the veterans military service overlapped by only 15 years. The Department of Defense Continued Healthcare Benefit is available to ex-spouses who do not meet either the 20/20/20 or 20/20/15 rules. They may apply for coverage within 60 days after losing eligibility to receive health insurance through the veteran and retain it for up to three years. Former spouses who choose this option will pay a monthly premium for healthcare coverage based on their income. Here are additional benefits they may receive.
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Disability Benefits And Retirement
As discussed above, regularly paid disability benefits are treated like earnings or income. Typically, this means that those benefits count toward calculating a child support and alimony, but arent an actual asset that can be divided.
However, once the disabled spouse retires, those benefits may no longer be treated as income. Specifically, the disability payments may be considered an asset if the recipient spouse would have received a pension upon retirement, except for the disability. For example, disability payments may become a disability pension for a policeman who would have received a pension at age 55, but couldn’t work that long due to an injury. This type of pension is typically treated like a retirement account, which is subject to division in a divorce. If so, the court will then divide the benefits based on either the equitable division method or community property approach, depending on where you live.
There are many ways to treat disability benefits depending the the particular circumstances in your case. If you have questions, you should review the issue with a local divorce attorney.
Does Sbp Stop If Spouse Remarries
If spouse coverage is elected and the spouse is lost through death or divorce, SBP coverage is suspended. If the member remarries and has not converted to former spouse coverage, three options are available. The member must notify DFAS of the desired option within one year of the new marriage.
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Disability Payments Are Not Subject To Divorce Settlements
If you are a divorced service member or veteran, there are several circumstances however that could potentially impact the payment of your disability payments, and of course answer the question for you of, is a Divorced Spouse Entitled to VA Disability Benefits?
In this article, we will break down for you what variables, verdicts, and legislation that could impact your disability payments and their availability to your former spouse.
Military personnel are under tremendous amounts of pressure. The stress from long hours, deployments, injuries, and duty puts a great amount of strain on service member marriages. This strain, for some, inevitably leads to divorce.
In fact, according to this study by Princeton University and the RAND corporation, military marriages are more likely to end in divorce after the service member has left the military.
While military service provides many incentives for getting married, unfortunately, life after service for many includes filing for divorce.
How Long Do You Have To Be Married To A Military Man To Get His Benefits
But if you were married for at least 20 years and he has served for at least 20 of those same years, you will be able to get some benefits. Make sense? For those who meet the 20/20/20 military divorce rule, you will still be able to use the commissary, exchange and Tricare after your divorce is final.
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What Happens After Someone Files For Va Apportionment
Importantly, if an individual is looking for apportionment of VA benefits, they will have to file a claim. That is, apportionment is not something that is going to be automatically granted. As mentioned above, family members must fill out and submit VA Form 21-0788, Information Regarding Apportionment of Beneficiarys Award. If the individual applying did not submit financial statements in support of their request, VA will begin the development process in which the department requests, obtains, and reviews such documentation. Specifically, VA will often request that both the veteran and the person filing for the apportionment submit evidence, if applicable. For example, a veteran might submit evidence showing that the apportionment would result in financial hardship for them. Conversely, the person filing for apportionment would need to submit documentation showing that the apportionment is necessary. Once VA has that evidence, it will issue a decision either granting or denying the apportionment, and that decision will also determine the amount of apportionment, if granted.
Are Military & Veteran Benefits Considered Marital Property
The division of marital property can be a complicated part of getting a divorce, especially when certain government benefits are involved. For veterans, there are special rules that determine how their benefits are distributed in a divorce. Whether military or veteran benefits are divided in a divorce depends on the nature of the particular benefit. This article examines how Texas law treats military and veteran benefits in a divorce.
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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.
What Is Dependency And Indemnity Compensation
DIC is a monthly benefit paid to eligible survivors of certain deceased veterans, including survivors of:
- Military members who died while on active duty
- Veterans whose death was the result of a service-related injury or disease
- Veterans whose death wasn’t related to their service but who received VA disability compensation
The monthly tax-free benefit is currently more than $1,300.
To be eligible for DIC, the surviving spouse must have been married to a service member who died on active duty or married a veteran whose death was service-connected. There are other rules regarding when the marriage occurred, if there are children or if the marriage was terminated due to divorce.
If the spouse remarries after the veteran dies, they can remain eligible for the benefit if the date of remarriage is on or after Dec. 16, 2003, and they are at least 57 years old.
Effective Jan. 5, 2021, that age limit dropped to 55.
The surviving children of a qualifying veteran are also eligible for the DIC benefit if they are unmarried and under 18, or between the ages of 18 and 23 and attending school. Certain adult children who cannot provide for themselves due to physical or mental disabilities also can be entitled to DIC. Some surviving parents may be eligible for the benefit if they meet income limits.
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Remarriage Rules Relaxed For Surviving Spouses Seeking Va Benefits
A little-noticed provision in Public Law 116-315, the National Defense Authorization Act of 2020, makes it easier for surviving spouses to continue receiving Department of Veterans Affairs benefits if they remarry.
The law made changes to the remarriage rules for Dependency and Indemnity Compensation . Effective Jan. 5, 2021, a veteran’s surviving spouse who remarries after the veteran’s death will remain eligible for the benefit paid by the VA if the spouse is at least 55 years old. The remarriage must have occurred on or after that date.
Prior to this change in the law, surviving spouses who remarried before their 57th birthday lost eligibility for the benefit.
Are Disability Benefits Received In Lieu Of Retirement Pay Divisible Marital Property
Military divorce cases involve a complex convergence of state and federal laws. States vary in their interpretation and application of the federal laws governing veterans disability benefits and their use in divorce proceedings. Last October, the U.S. Supreme Court declined to consider this issue, which states are sharply divided over: whether federal law bars state divorce courts from considering a veterans disability benefits marital property that can be divided between divorcing parties. This post outlines what you need to know as a military servicemember, veteran, or spouse before obtaining a divorce.
Under federal law, the Uniformed Former Spouses Protection Act authorizes state courts to divide a servicemembers disposable retired pay in a divorce. Disposable retirement pay is defined as the total monthly retired pay to which a member is entitled, less any authorized deductions among those authorized amounts deducted from a servicemembers retired pay are disability benefits. The USFSP does not require any particular division of the servicemembers military retirement, but rather authorizes states to apply their own laws regarding division of military retirement in divorce cases.
Barclay v. Barclay, 133 S. Ct. 176, 184 L. Ed. 2d 235 , cert. denied.
See 10 U.S.C. § 1408.
10 U.S.C. § 1408.
10 U.S.C. § 1408.
490 U.S. 581 .
Id. at 594-95.
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