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If you get a divorce is your spouse entitled to any of your Veteran's disability benefits?

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VA DISABILITY & DIVORCE: United States Code, Title 38, Veteran's Benefits, is the governing document created by the U.S. Congress for the administration and protection of benefits, entitlements, and health care services earned by persons honorably discharged from the U.S. military, spouses, dependents, and widows of former military personnel. The Department of Veterans Affairs is the sole agency responsible for enforcement and interpretation of the contents of USC, Title 38. According to the Department of Justice, the ultimate responsibility for all actions taken/or not taken under USC, Title 38 falls squarely on the shoulders of the Secretary of the Department of Veterans Affairs. One of the primary functions of USC, Title 38 is to insure persons not eligible for veterans' benefits, entitlements, compensation, and/or medical services are not granted access to such, and veterans receiving benefits, entitlements, compensation, and/or medical services are qualified and eligible to receive said benefits. In the case of veteran's disability compensation, these funds are paid solely to the disabled veteran for injuries incurred in the line of duty. Disability compensation is tax-exempt and not classified as 'income' by the IRS. VA disability compensation is also protected from seizure, attachment, garnishment, or levy under any legal process whatsoever.

USC, Title 38 reads, "Section 5301(a) - 1) 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. In spite of this very focused and explicate language, every day in civil court rooms across the country disabled veterans are being forced to use their earned disability compensation as a divisible asset in a divorce settlement, or go to jail for contempt. In a blatant violation of USC, Title 38, most family court attorneys and civil court judges have wrongly concluded that the federal law does not apply to them or their court proceedings. Nothing could be farther from the truth. Contrary to the opinions of some, there is no gray area here. When the federal law states; 'under any legal or equitable process whatever, either before or after receipt by the beneficiary', that means exactly that. USC, Title 38 makes NO exception for civil court rulings. Operation Firing For Effect (OFFE) is currently monitoring over 40 cases nationwide where severely disabled veterans are being ordered to use their earned disability compensation to pay alimony or spousal support to a non-military able body ex-spouse. In a number of these cases the disabled veteran has spent months in jail for refusing to give up their disability compensation to a third party. Operation Firing For Effect (OFFE) is a veteran's advocacy group devoted to the improvement and protection of benefits and entitlements earned by our men and women in uniform.

Although USC, Title 38 is extremely clear about the protection of disability compensation, the Department of Veterans Affairs refuses to enforce the laws outlined in Title 38. This inaction by the VA leaves the veteran with no other recourse but to pay the court order or go to jail. OFFE is currently warning active duty personnel (man, or woman) of the waiting ambush they face if they should fall victim to an ugly divorce upon returning home. OFFE is recommending all military personnel consider filing a premarital/prenuptial agreement designed specifically to protect veterans' benefits from consideration as a divisible asset in a divorce. OFFE is also exploring the possibility of filing a class-action suit against the Department of Veterans Affairs for failure to enforce the federal statues that protect veteran's benefits from third party awards. The Department of Veterans Affairs has an obligation to our veterans to protect their benefits and entitlements from abuse and theft. For more information on this issue, refer to: See Related Links

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"Clear and substantial" major damage to federal interests.
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There is "clear and substantial" major damage to federal interests when state court judges make lasting decisions that seriously impact and complicate the Veterans Administration goals. Upsetting, by overruling the medical decisions, and the many hours of work that VA medical care professionals have invested in rehabilitation of disabled veterans, all this when a state court arbitrarily is allowed to take away a veterans VA disability compensation in third party alimony awards in violation of…..
38 USC 5301. Nonassignability and exempt status of benefits, and….
38 USC 1155 "Authority for schedule for rating disabilities.
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Now, ".. an argument may be, is that the veteran's disability rating has not actually been downgraded. No one has actually decreased the VA predetermined rating. In this situation, the judge is merely apportioning it after the fact."
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This maybe true, however, based on the fact because the rating and compensation are directly tied to each other. Sure the rating may have not gone down, but to a veteran his disability compensation payments is contingent upon what VA medical professionals determined the disabled veteran should be compensated for, forgetting for the moment, any rating system. To the veteran who loses any portion of his compensation payments, he considers his rating has been downgraded. Because, now his VA rating is meaningless. After all, a veterans health and well being are now in jeopardy. A " cause and effect" situation. We just have to stop this nonsense that's happening in state courts.
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Which brings up the question, how can state court judges in violating, 38 USC 5301, 42 USC 1408, arbitrarily award as alimony, a portion of a veteran's VA disability rated compensation, and waive away, by reviewing the disability rights of veteran whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same. State court judges, playing doctor, border on medical negligence, overstepping those whose authority it belongs, in the practice of medicine, re-evaluation, and rehabilitation of the veteran, and VA medical professionals. In direct violation of 38 USC 1155, "Authority for schedule for rating disabilities." "..., [I]n no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred." Reduced readjustment in a rating schedule, in the taking away money's used for the recovery and rehabilitation of disabled veterans, and handing it over to a healthy third party. Was it the intent of Congress that judges substitute their judgment for the judgment of VA medical professionals?
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I now wondered, if state court judges are allowed to take away a veteran's disability compensation without a medical license, or medical knowledge? How does the Board of Veterans Appeals, who are continually faced with determining a veteran's disability compensation, or other medical claim, adjudicate these medical questions?
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§ 20.101 Rule 101. Jurisdiction of the Board.
"…Medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board's jurisdiction…."
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Even the Social Security Administration… has medical evidence standards they must follow.
42 USC 423 "In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual's treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis."
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State court judges in awarding a veterans' VA disability compensation as 'income' in a divorce, show an indifference to veterans' and their serious medical needs. The deliberate intrusion by state courts into federal issues and laws, ruling arbitrarily by awarding VA disability compensation to a third party is unwarranted. They are required to obtain advisory medical opinion from medical experts, just as required by the Board of Veterans' Appeals (BVA), and as well, as in all other civil litigation.
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Judges, rule arbitrarily that they have the right to award VA disability compensation to third parties. The right to play doctor. Because of this, these judges have taken on the responsibilities of a medical doctor, and ruled as a doctor. Contrary to the veteran's reliance on 38 USC 5301, and because of the disability of the veteran, they have, by their judicial proceedings determined the disabled veteran is incapable of caring for his or her own interests. Due to a veterans' disability, and their authority as judge in ruling, awarding of VA disability compensation to third parties. The reality is, the state court judge has taken on another responsibility, and became the veterans' legal guardian, his "ward". Another disabled veterans' right, that of being able handle his or her own rehabilitation now has been taken away .
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The legal recommendation of the VA's own General Council in medical determinations, and questions, that are beyond the knowledge of those not in the medical field.
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38 CFR 20.901 Rule 901. Medical opinions and opinions of the General Counsel.
"(d) Independent medical expert opinions. When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more medical experts who are not employees of the Department of Veterans Affairs. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made by the Secretary of Veterans Affairs. An appropriate official of the institution will select the individual expert, or experts, to give an opinion." (Authority: 38 U.S.C. 7109)
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VA Can't Base Denial on its Own Medical Judgment Colvin v. Derwinski, 1 Vet. App. 171 (1991)
Colvin stands for a now deeply embedded and fundamental principle of veterans law-the VA may use only independent medical evidence to support its benefits decisions. The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision
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"…before a state law governing domestic relations will be overridden, it "must do 'major damage' to `clear and substantial' federal interests."
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"Clear and substantial" major damage to federal interests occurs when, in attaching, or "considering" for any reason, the VA rated disability compensation benefits of disabled veterans by judges practicing in a field where they have no expertise. The expertise that VA doctors, and VA healthcare professionals are required to have in order to determine the appropriate medical procedures, and the proper disability compensation payment in order to rehabilitate, with a medical degree of certainty, that would ensure a disabled veteran return to a healthy meaningful outlook, and enjoyment of life, and independence in daily living.
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"Clear and substantial" major damage to federal interests occurs. When the work of the primary medical care provided by Veterans Administration medical teams to disabled veterans' has been compromised by activist state court judges. Readjusting the VA's predetermined medical disability payment rating schedules, by court order to lower VA payout levels. Attaching these just acquired disability compensation benefit payments as alimony awards, by judges practicing in a field where they have no business practicing. Doctors do not attempt to practice law. The expertise and knowledge of VA doctors, and VA healthcare professionals are required in order to determine the appropriate medical care, and disability payment compensation in order to rehabilitate, with a medical degree of certainty, that would ensure a disabled veteran return to a healthy meaningful outlook, and enjoyment of life, and independence in daily living.
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"In no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred."

Perhaps we can relieve many of the problems disabled veteran's are experiencing by trying to find another solution to the problems in divorce? Here is one.
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Perhaps this… the protection of VA disability from alimony?
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United States Court of Appeals for the Federal Circuit
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PHILIP E. CUSHMAN, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs,
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http://www.pva.org/atf/cf/%7BCA2A0FFB-6859-4BC1-BC96-6B57F57F0391%7D/legal_veterans%20due%20process.pdf
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"…a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits."
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Let's try this…..42 USC 1983, "Civil action for deprivation of rights." Researching you will find that there is a much court room activity on this very subject. Below I have referenced as much information, facts, explanations, etc., on one subject, finding references, or case law which mirrors a state courts seizing VA federal funds used for veterans' disability compensation.
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As we have learned first hand is, that you cannot expect change in any law through letter writing. It cannot be accomplished. It's impossible. Although what follows is an approach to a problem and can only be accomplished through a court proceedings. The legal specifics of filing would require a lawyer. My thinking as it stands right now. During divorce court proceedings when the court judge advises a disabled veteran that a portion of his disability compensation is being awarded as part of alimony/child support, the veteran must claim his Due Process to appeal this disability compensation issue.
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Yes, the court may have given the veteran Due Process as far as the court proceeding in divorce and alimony/child support is concerned to settle a state action, however, what has to be settled is Due Process, "…a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits." United States Court of Appeals for the Federal Circuit PHILIP E. CUSHMAN, v. ERIC K. SHINSEKI, Secretary of Veteran Affairs,
Due Process because of 38 USC 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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42 USC 1983, I wonder if anybody has given any thought to it's potential? Because VA disability compensation are federal funds, appealing on Due Process grounds, whether the state has the right to deny the appeal of deprivation of rights under, 42 USC 1983, "Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State.. subjects, or causes to be subjected, any citizen of the United States… deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, … or other proper proceeding for redress,.."
http://legal-dictionary.thefreedictionary.com/Section+1983
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42 U.S.C. § 1983, which provides a remedy for deprivation of constitutional rights when that it takes place "under color of any statute, ordinance, regulation, custom, or usage" of a State. "..a claimant must demonstrate that the underlying statute creates enforceable "rights" because "it is rights" after all, "not the broader or vaguer 'benefits' or 'interests,' that may be enforced under" the statute." 42 USC 1983 illustrates a "state action" and a "right to be heard", whereupon a remedy is available to challenge state court rulings.
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The question then, does a state court have the legal right to take away a veteran's VA disability compensation? We think not! Because a state court judge cannot make these kinds of judgments affecting disabled veterans' of the many unknown consequences in any question of law or fact under any law administered by the Veterans Administration. Appealing would settle the question, is this a federal, or state question? In any appeal ,we as veterans' are concerned primarily with state court judges observing the law. Keeping in mind that a judge is immune from lawsuits.
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The following should give you some idea as to what is expected in a 42 USC 1983 filing. Because of a court judges outward disregard, hostility and detachment towards disabled veterans', much-less their medical concerns, you will find the courts injustice applies to each qualification listed in the civil jury instructions. Backed up by the decision in Cushman v. Shinseki.
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FEDERAL CIVIL JURY INSTRUCTIONS OF THE
SEVENTH CIRCUIT
http://www.ca7.uscourts.gov/7thcivinstruc2005.pdf
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Prepared By The Committee on Pattern Civil Jury Instructions of the Seventh Circuit
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CONSTITUTIONAL TORTS: 42 U.S.C. §1983
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7.12 EIGHTH AND FOURTEENTH AMENDMENTS:
FAILURE TO PROVIDE MEDICAL ATTENTION - ELEMENTS
To succeed on his claim of failure to provide medical attention, Plaintiff must prove each of the following things by a preponderance of the evidence:
1. Plaintiff had a serious medical need;
2. Defendant was deliberately indifferent to Plaintiff's serious medical need;
3. Defendant's conduct caused harm to Plaintiff;
[4. Defendant acted under color of law].
If you find that Plaintiff has proved each of these things by a preponderance of the
evidence, then you should find for Plaintiff, and go on to consider the question of damages.
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As we all know when it comes to a veterans' disability compensation activist state court judges rely on a function relied on by most state court judges, that is, forum shopping, stare decisis rulings. Rulings, based purely on judges acting without any medical knowledge, or medical authority. Speculating, primarily without understanding the medical consequences of rendering a deliberate and reckless concept of law upon a veteran's unknown medical surgical conditions, physical disabilities, severity, or needs. Stare decisis, the justification for many the court's illegal taking of veterans' disability compensation award to a third party.
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The practice of medicine is a privilege and a calling, and that it combines both art and science. Before we argue whether a state court judge is in any position to award a veteran's disability compensation to a third party is within the courts purview, we must first, before the seizure of any persons property, determine Due Process rights. Rights guaranteed in the 5th Amendment of the United States Constitution, and the 14th Amendment. "..nor shall any State deprive any person of life, liberty, or property, without Due Process of law: nor deny to any persons within it's jurisdiction the equal protection of the laws." Due Process recognized as the core of the liberty, protection from arbitrary governmental action. This, for veterans' opens the door to 42 USC 1983.
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Depriving any person of life, liberty, or property, without a hearing or guaranteed procedure to insure fairness is exactly what has happened to disabled veterans. Rulings, that are "unconstitutional", acting under color of state law for deprivations of rights secured by federal law, is justification for an immediate cause of Due Process action for an appeal under 42 USC 1983.
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Consider Public Health law 42 C.F.R. § 440.230(c), which prohibits an arbitrary denial of coverage based on diagnosis, type of illness, or condition which list required services for the classifications of categorically needy and medically needy, respectively.
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In searching there are vast numbers of 42 USC 1983 case law references, the following is one that parallels closely to the argument. Keeping in mind that Due Process applies for many reasons. It applies because your veterans disability compensation was seized illegally by a State court. Illegally, until your Due Process question has been settled. Higgins filed this § 1983 action on August 4, 1998.
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Vincent M. HIGGINS, Appellant, v. Howard L. BEYER, Department of Corrections;
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http://ftp.resource.org/courts.gov/c/F3/293/293.F3d.683.99-5556.html
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"New Jersey Department of Corrections, and 13 employees of the Adult Diagnostic and Treatment Center ("ADTC employees") violated 38 U.S.C. § 5301(a) by seizing money derived from a veteran's disability benefits check from his inmate account to pay a state court-ordered fine, and that he was deprived of his constitutional right to due process because his request for a predeprivation hearing was ignored."
Conclusion
"Higgins's complaint alleged sufficient facts to support a § 1983 claim that he was deprived of his rights under § 5301(a) and the Due Process Clause of the Fourteenth Amendment. Accordingly, we VACATE the dismissal of this action. Upon REMAND, the district court is directed to permit Higgins to amend his complaint so as to attempt to allege a § 1983 retaliation claim for the exercise of his federal rights."
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References, without links, I have listed for it's message.
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"[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs - e.g., food, clothing, shelter, medical care, and reasonable safety - it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. [Citations omitted.] The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf."
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"It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)"
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38 USC 5301 has repeatedly been invoked as the prime motivation in divorce action, defending against a veterans' disability compensation being awarded to third parties. The Constitution provides for federal court jurisdiction whenever a case "arises under" federal law. The Congress also has provided in 28 USC 1331, that federal courts may take jurisdiction over any civil action arising under the Constitution, laws or treaties of the United States. "…The Court has interpreted the Constitution language much more liberally, holding that as long a federal question is an "original ingredient" in the case, even if it does not present an issue to be litigated, the Constitution may be satisfied…"
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Federal Court jurisdiction can be invoked under 42 USC 1983, 28 USC 1331, when the statement of the plaintiff's claim, properly pleaded, shows that it is based on federal law. If ignored, the 'RULE OF LAW' has collapsed.

Read more: http://wiki.answers.com/Q/Can_a_judge_take_away_a_veterans_disability_check_and_give_it_to_the_veterans_wife_in_a_divorce#ixzz243Sn8MrD
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