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Should VA Disability Benefits Be Subject to Alimony Claims?

Posted by J. Benjamin Stevens | Jun 24, 2012 | 0 Comments

A disabled vet has filed a petition before the U.S. Supreme Court asking the justices to consider whether states are permitted to allow divorce courts to count a veteran's disability benefits when determining spousal support. The Air Force veteran, Peter James Barclay, also asked the Court to determine whether federal law prevents states from considering VA disability benefits communal property to be divided like other joint marital assets.

When Barclay divorced his wife in 2010, the divorce court judge considered the value of his VA benefits when awarding his wife $1,000 per month in alimony. His only income at the time was the $4,400 per month he received from the VA and Social Security.  Barclay is on disability due to post-traumatic stress related to his job as first responder to the 1995 Oklahoma City bombings. He witnessed many people dying and had to clear debris and wounded victims and, as a result, become unemployed and able to draw benefits.

His attorney is now attempting to have the Supreme Court decide whether Title 38 U.S. Code, Section 5301(a), which says that VA disability benefits are immune from “taxation”, claims of creditors, attachment, levy and seizure,” doesn't also prevent them from being included in alimony calculations.

Barclay's attorney concedes that most states follow the example set by the divorce court judge in this case. This is based on the Supreme Court's Rose decision which says that VA benefits are payments intended to compensate both the veteran and his family. Barclay disagrees, saying that his disability pay is meant to compensate him for his loss of income. Barclay makes the point that if a veteran has a spouse the VA compensation tables award a higher disability payment and if the veteran gets divorces the extra payment stops. This mean the spouse ought not be able to claim the base figure which is unchanged regardless of marital status.

Barclay's attorney points out that Arizona recently passed a law shielding veterans' disability benefits from alimony calculations. His petition also cites two other states – Texas and Vermont – where VA disability benefits paid in lieu of retirement are not subject to division as property or to alimony calculations.

One legal expert said that every state except Arizona allows veteran benefits to be included in calculating spousal or child support payments based on Rose decision that benefits are used to support the entire family. The expert conceded that states are more evenly split on whether disability pay can be divided as marital property. This division may mean that the Court decides to step in and settle the issue. For now, we wait and see.

If you find yourself facing the prospect of an alimony, child custody, separation, or divorce issue, you need the help of an experienced South Carolina family law attorney to guide you through the difficult process.

Source:Will justices review how states treat veterans' disability pay in divorce cases?,” by Tom Philpott, published at Stripes.com.

About the Author

J. Benjamin Stevens

Aggressive, creative, and compassionate are words Ben Stevens' colleagues freely use to describe him as a divorce and family law attorney. Ben is a Fellow in the prestigious American Academy of Matrimonial Lawyers, the International Academy of Family Lawyers, and is a Board Certified Family Trial Advocate by the National Board of Trial Advocates. He is one of only four attorneys in South Carolina with those simultaneous distinctions. To schedule a consultation with Ben Stevens call (864) 598-9172.

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