Are VA disability benefits included as income when it pertains to the awarding of alimony?


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2015-07-16 17:50:20
2015-07-16 17:50:20


The answer here is no, it is not lawful to include disability as income when considering alimony. And as in Florida, in upholding 38 USC 5301, not even if you voluntarily assign it over. This is, tax free disability compensation which has been waived from a veterans' retired pay.

Title 10 USC Sec. 1408; (4) the term "disposable retired pay" means the total monthly retired pay to which a member is entitled less amounts which-- (A) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (B) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under Title 5 or Title 38.

In Mansell v. Mansell the United States Supreme Court addressed the extent to which state courts "may treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans' disability benefits." Mansell 490 U.S. at 583. In Abernethy, the Florida Supreme Court interpreted Mansell as prohibiting military personnel from assigning military disability benefits by settlement agreement and precluding state courts from enforcing such agreements. Abernethy, 699 So. 2d at 236. The Supreme court in Abernethy explained, "[T]he Court [in Mansell] held that the USFSPA [Uniformed Services Former Spouses' Protection Act] does not grant state courts the power to treat as divisible property military retirement pay which has been waived to receive veterans' disability benefits." Id. at 239.


True VA, RRD and SSD are not subject to partitioning in the matter of spousal maintenance (alimony). Such benefits are subject to attachment when the issue is a matter of child support or federal and state taxes owed.

Last year a bill was passed called the VDPA (Veteran Disability Protection Act) which bars all courts across the U.S from taking disability/compensation as alimony.


Such are the dreams of the everyday disabled veteran. "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)"


38 USC 5301 Nonassignability and exempt status of benefits. "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,.. 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.


The question being, how is it, that state court judges can arbitrarily and capriciously award as alimony, with the mere wave of a hand, waive away a portion of a veteran's VA disability rated compensation? Moneys in the form of disability compensation, the disability rights of a veteran, whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same. A disabled veteran's plead to the judge, "I have a severe serious back injury, I need all of my VA disability compensation." The judge would reply, "Are you a doctor?"


But yet, state court judges, are in reality playing doctor, without medical license or knowledge .. a practice forbidden, providing penalties by law , and border on medical negligence. All without any input, or approval from the Veterans Administration. Overstepping those whose authority it belongs, the dedicated VA medical professionals, in the practice of medicine, re-evaluation, and rehabilitation of the veteran. While at the same time violating federal law, 38 USC 5301, 42 USC 1408, and the 14th Amendment.


Ninth Circuit Says Congress, Not Courts, Have Say Over VA Health Care.



Continually, State court judges disregard the law, as reduction in disability compensation cannot be "reduced unless an improvement in the veteran's disability is shown to have occurred." USC 1155 Authority for schedule for rating disabilities.


How are judges allowed the discretion to award as alimony disability compensation based on 'statutory' awards? Which are not predicated directly on the average reduction in earning capacity, but primarily upon consideration of noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of the disability. The purpose of the statutory award for loss or loss of use of a creative organ is to account for psychological factors.


"Clear and substantial" major damage to federal interests occurs when state court judges make lasting decisions, that seriously impact disabled veterans' rated compensation and complicate Veterans Administration goals, and responsibilities. Upsetting, and overruling VA medical compensation decisions, which involve many hours of work that VA medical professionals have invested in the medical care, control, follow-up, and rehabilitation of disabled veterans. All this happens with VA complicity, 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. 42 USC § 407 - Assignment of benefits, carries similar language.


Where is it written, the VA authority, when a state judge can arbitrarily overrule the VA, the VA medical doctors and other medical professionals' that determine a veterans' medical rating compensation? His future now without the compensation that was by law assured? Tax payer monies mandated by Congress purposely, as veterans service compensation for injuries received, life altering as they are, now being diverted purposely by state courts to healthy third parties in many cases, in a determined and engaging violation of the law. To allow what has been happening, was it the intent of Congress that state court judges substitute their judgment for the judgment of VA doctors and medical professionals? I don't think so!


Perhaps, state legislators will or have proposed legislation such as Massachusetts, West Virginia, California, as well as other states, due to the changing realities of family life, either proposed or passed that 'permanent current alimony' obligations be eliminated in alimony reform legislation? Legislation having broad appeal, proposed, and as happened, passed into law without thought or consideration of the disabled veteran wanting, under similar circumstances.


To this day, there is no eagerness of state legislators to extend this, or any proposal to eliminate veterans disability compensation awards from alimony, despite the law, or any reform measures. The laws protecting disability compensation are very clear. What is needed is reform in the court system, and legislative re-thinking, that for whatever reason, due process and property rights do not apply to disabled veterans? This is something disabled veterans', despite all efforts at law, over many years have tried to accomplish. Brushed aside for more important things.


The law is clear as to a veteran's rights and a state court judge's improper judicial authority in denying protections that are guaranteed.


However, any proposed legislation is discriminatory which completely ignores ALIMONY REFORM for disabled veterans. It is obvious, a pattern of unintentional discrimination is evident against disabled veterans.


Disabled veteran's have had the exact same alimony issue as everybody else. However, correcting clearly improper and illegal court rulings imposed on disabled veteran's is the issue, as much as it is any reform proposal.


I hope state legislators will honor them, with clarifying legislation supporting the property rights of the disabled veteran, setting an example for the rest of the nation.



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