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Helping me may help other Vets too!!

Retired67romeoRetired67romeo Member Posts: 3 ✭✭
edited September 2009 in US Military Veteran Forum
I don't mean to exclude anyone, but I need facts and not opinions on this, so please reply only if you are experienced in the matter. I receive VA disability benefits and even yours and my favorite Uncle doesn't tax it or count it as income. My question is, after 28 years, the old lady decided to start her life over and thinks her attorney is going to be able to get her a piece of my disability. I'm guessing she told him it's a retirement, not disability. Regardless, do you know if she can go after it or not? Thanks in advance and maybe this will help others as well.

Comments

  • n/an/a Member Posts: 168,427
    edited November -1
    No she cannot get any of it. Your benifit amout will go down though because you will need to report to the VA when the divorce is final and have her removed from your benifit amount.

    VA disability is not atachable by anyone (includeing the IRS) excludeing if you got any military bonuses that need to be paid back or if for some reason you do get an over payment of some sort from the VA them selves.

    Now if any part of does happen to be retirement then she could get a persentage of the retirement pay but not the disability pay.
  • Retired67romeoRetired67romeo Member Posts: 3 ✭✭
    edited November -1
    Thanks for the reply * r done. That's what I was hoping. I also have a Federal Retirement that I'm certain she will go after, but that's where I plan to stand my ground and fight the good fight [B)] I don't have any bonuses and was never fortunate enough to receive any. She did run up my STAR card and for that 25% of my retirement is garnished monthly, all tax returns, my Federal Stimulus check from last year and the recent one from the VA have all gone toward that damned credit card. Thanks again bro and keep on truckin!! quote:Originally posted by *_r_done
    No she cannot get any of it. Your benifit amout will go down though because you will need to report to the VA when the divorce is final and have her removed from your benifit amount.

    VA disability is not atachable by anyone (includeing the IRS) excludeing if you got any military bonuses that need to be paid back or if for some reason you do get an over payment of some sort from the VA them selves.

    Now if any part of does happen to be retirement then she could get a persentage of the retirement pay but not the disability pay.
  • kumatekumate Member Posts: 2,311 ✭✭✭
    edited November -1
    Wait one,were you married before you became disabled?
  • n/an/a Member Posts: 168,427
    edited November -1
    quote:Originally posted by kumate
    Wait one,were you married before you became disabled?
    That does not matter on VA disability payments.
  • 82nd airborne infantry82nd airborne infantry Member Posts: 12 ✭✭
    edited November -1
    quote:Originally posted by Retired67romeo
    I don't mean to exclude anyone, but I need facts and not opinions on this, so please reply only if you are experienced in the matter. I receive VA disability benefits and even yours and my favorite Uncle doesn't tax it or count it as income. My question is, after 28 years, the old lady decided to start her life over and thinks her attorney is going to be able to get her a piece of my disability. I'm guessing she told him it's a retirement, not disability. Regardless, do you know if she can go after it or not? Thanks in advance and maybe this will help others as well.



    SEE *-R-DONE...running your mouth when you should have just told him to get A REAL GOOD LAWYER!!! because again...YOU DON"T KNOW VA LAW FOR CRAP!!!.. Stick to telling your war hero stories and leave the Law to people who ACTAUALLY KNOW IT.

    FIRST ..GET A REAL GOOD ATTORNEY!!!. but here is the VERY complicated answer.
    Your VA disability under 38 USC 5301(a) is exempt from claims of creditors(and thus not subject to garnishment). However, the federal statue does not prohibit such income from being considered by a state court judge in determining a spouse's ability to pay spousal and child support.Are they able to garnish???? that depends on the VA in your state and if you have children under 18 or not. The VA can and will apportion some of your benefits if she files the proper paperwork and there are minor children.... I need more information to advise you better..

    In Mansell v. Mansell, 490 U.S. 581 (!989) (an appeal from a decision of the California Court of Appeals), the United States Supreme Court ruled that federal law prohibits state courts from dividing veteran's and military disability benefits under state's community property or equitable distribution laws. The core holding of Mansell is that state courts cannot treat veteran's or military disability benefits as property that is subject to be divided between divorcing spouses.

    Thus, "income" received in the form of disability benefits is exempt from being considered as "property" for purposes of being directly divided and awarded in whole or in part to the veteran's spouse as part the division of property in connection with a dissolution of marriage. The state courts clearly respect that holding. E.g., Robinson v. Robinson, 647 So. 2d 160 (Fla. 1st Dist. Ct. App. 1994); In re Murphy, 261 Mont. 363, 862 P.2d 1143 (1993); Bishop v. Bishop, 113 N.C. App. 725, 440 S.E.2d 591 (1994); Avery v. Avery, 2002 WL 360296 (Ohio Ct. App. 2d Dist. 2002); Carney v. Carney, 449 Pa. Super. 179, 673 A.2d 367 (1996).

    However, the Mansell decision does not bar a divorce court from considering disability benefits as "income" of the veteran spouse for the purpose of determining the ability of the veteran spouse to pay spousal support (alimony). Doing so appears to be consistent with (and not in violation of) the Mansell decision. Thus, where disability is elected before the divorce, disability benefits are income for purposes of support. See Womack v. Womack, 307 Ark. 269, 818 S.W.2d 958 (1991); In re Marriage of Bahr, 32 P.3d 1212 (Kan App 2001); Riley v. Riley, 82 Md. App. 400, 571 A.2d 1261 (1990); Weberg v. Weberg, 158 Wis. 2d 540, 463 N.W.2d 382 (Ct. App. 1990). Where disability has not been elected at divorce, but an election is pending or otherwise seems likely, the court may reserve jurisdiction to make an award of support after the election is final. See Collins v. Collins, 144 Md. App. 395, 798 A.2d 1155 (2002). Finally there is no federal statute that has been construed to mean that military and VA disability pay is exempt from being deemed and considered as income for the purpose of determining the ability of the veteran spouse to pay spousal support (alimony).

    38 USC ? 5301(a) effectively makes federal government disability income exempt from the claims of creditors (and thus not subject to garnishment). However, the federal statute does prohibit such income from being considered by a state divorce court judge in determining a spouse's ability to pay spousal support.

    http://www.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00005301----000-.html


    YOU NEED A GOOD LAWYER!! alot depends on the state you live in as well. I hope this helps although it may not be the awswer you wanted to hear!
  • n/an/a Member Posts: 168,427
    edited November -1
    quote:Originally posted by 82nd airborne infantry
    quote:Originally posted by Retired67romeo
    I don't mean to exclude anyone, but I need facts and not opinions on this, so please reply only if you are experienced in the matter. I receive VA disability benefits and even yours and my favorite Uncle doesn't tax it or count it as income. My question is, after 28 years, the old lady decided to start her life over and thinks her attorney is going to be able to get her a piece of my disability. I'm guessing she told him it's a retirement, not disability. Regardless, do you know if she can go after it or not? Thanks in advance and maybe this will help others as well.



    SEE *-R-DONE...running your mouth when you should have just told him to get A REAL GOOD LAWYER!!! because again...YOU DON"T KNOW VA LAW FOR CRAP!!!.. Stick to telling your war hero stories and leave the Law to people who ACTAUALLY KNOW IT.

    FIRST ..GET A REAL GOOD ATTORNEY!!!. but here is the VERY complicated answer.
    Your VA disability under 38 USC 5301(a) is exempt from claims of creditors(and thus not subject to garnishment). However, the federal statue does not prohibit such income from being considered by a state court judge in determining a spouse's ability to pay spousal and child support.Are they able to garnish???? that depends on the VA in your state and if you have children under 18 or not. The VA can and will apportion some of your benefits if she files the proper paperwork and there are minor children.... I need more information to advise you better..

    In Mansell v. Mansell, 490 U.S. 581 (!989) (an appeal from a decision of the California Court of Appeals), the United States Supreme Court ruled that federal law prohibits state courts from dividing veteran's and military disability benefits under state's community property or equitable distribution laws. The core holding of Mansell is that state courts cannot treat veteran's or military disability benefits as property that is subject to be divided between divorcing spouses.

    Thus, "income" received in the form of disability benefits is exempt from being considered as "property" for purposes of being directly divided and awarded in whole or in part to the veteran's spouse as part the division of property in connection with a dissolution of marriage. The state courts clearly respect that holding. E.g., Robinson v. Robinson, 647 So. 2d 160 (Fla. 1st Dist. Ct. App. 1994); In re Murphy, 261 Mont. 363, 862 P.2d 1143 (1993); Bishop v. Bishop, 113 N.C. App. 725, 440 S.E.2d 591 (1994); Avery v. Avery, 2002 WL 360296 (Ohio Ct. App. 2d Dist. 2002); Carney v. Carney, 449 Pa. Super. 179, 673 A.2d 367 (1996).

    However, the Mansell decision does not bar a divorce court from considering disability benefits as "income" of the veteran spouse for the purpose of determining the ability of the veteran spouse to pay spousal support (alimony). Doing so appears to be consistent with (and not in violation of) the Mansell decision. Thus, where disability is elected before the divorce, disability benefits are income for purposes of support. See Womack v. Womack, 307 Ark. 269, 818 S.W.2d 958 (1991); In re Marriage of Bahr, 32 P.3d 1212 (Kan App 2001); Riley v. Riley, 82 Md. App. 400, 571 A.2d 1261 (1990); Weberg v. Weberg, 158 Wis. 2d 540, 463 N.W.2d 382 (Ct. App. 1990). Where disability has not been elected at divorce, but an election is pending or otherwise seems likely, the court may reserve jurisdiction to make an award of support after the election is final. See Collins v. Collins, 144 Md. App. 395, 798 A.2d 1155 (2002). Finally there is no federal statute that has been construed to mean that military and VA disability pay is exempt from being deemed and considered as income for the purpose of determining the ability of the veteran spouse to pay spousal support (alimony).

    38 USC ? 5301(a) effectively makes federal government disability income exempt from the claims of creditors (and thus not subject to garnishment). However, the federal statute does prohibit such income from being considered by a state divorce court judge in determining a spouse's ability to pay spousal support.

    http://www.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00005301----000-.html


    YOU NEED A GOOD LAWYER!! alot depends on the state you live in as well. I hope this helps although it may not be the awswer you wanted to hear!


    In red is exactly what I answered and what the question involved! So there fore my answer was 100% correct!

    I never stated that he did not have to claim it as income!

    Trust me, I just finished going through a divorce and definatly looked into this.

    She may be able to get alimony due to his income but that is not the same as getting a percentage of his money for life as she could do if it was a retirement income.

    So I will stand by my statement that his VA Disability income is safe from her getting a percentage of it!
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