Can child support be taken out of VA disability check?

Answer 1

Unfortunately no.

The process for collecting a childs portion of a Veterans Compensation payment requires to parent or gardian to apply for what is called an Apportionment. They will only begin from from the point the application is submitted.

However, if the veteran did something to interfere with this process such as hiding the fact that they were getting the payments then you would have cause. You could appeal this through the VA and there is a process for that. You could take it to court but that wouldn't be the right venue. It's not up to the court to divide food stamp cards either. It would technically be illegal to the language of the law but a court judge might be willing to make a favorable ruling based on the unlikely chance a higher court would overrule them on the issue. It would not be seen as doing "major damage" since the court was not taking the veterans money or ignoring the authority of the VA to do apportionments.

Answer 2

Yes and No.

It can't be garnished or attached. The courts are not suppose to include it as income or divide the money either. However, it can be apportioned. If a child is not living with the veteran it's the USDVA's job to split the money.

Is it legal for the COURT to use VA Compensation for Child Support?

Tricky answer. Prior to the Rose v Rose case of 1987 the Veterans Administration was failing to do its job by spitting the payments when a dependent was not living with the veteran. This is what the Rose v Rose case was about. The US Supreme Court ruled under the existing language of 38 USC 211 the states had the "deep moral" responsibility of assuming this federal authority. The Federal Government had just enacted the Child Support Enforcement Act taking Authority over the establishment and enforcement of Child Support. This act dictates policy and oversees the programs administrated by the states. The basic understanding here is the states were essentially required to act in the failure of the Veterans Administration. From 1987 and prior the answer is yes.

From 1988 to present the answer is no. The US Congress responded to this case by firing the Veterans Administration. They enacted the Department of Veterans Affairs Act of 1988 and completely rewrote Title 38 in its entirety.

38 USC § 211 - 1987

"The decisions rendered by the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans."

38 USC § 511 - 1988

"The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b)(Appeals Processes), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise."

This response of Congress declared Sole Authority for the new department and obligates the USDVA to divide the compensation through apportionment for dependents.

Is it legal for the Department of Veterans Affairs to divide VA Compensation?

Yes, the new USDVA is now currently paying on over 30,000 cases of apportionment for those that properly follow the legal process.

The correct course of law is not to go to court to divide the VA Compensation. That would be like asking them to split up a food stamp card. You would go back to the Food Stamp office and update your information and get separate card. For VA Apportionment it is very similar and legally called an Apportionment.

When a person separates from a Veteran, they need to go to a Veteran Services office and request help completing VA Form 21-4138. A spouse can apply for benefit apportionment for themselves until a divorce is complete and any children in their custody. During the divorce you are still the spouse and a dependent. Once a final divorce decree is made, only children will remain as dependents.

The parent or guardian needs to have the State Office of Child Support Enforcement (OCSE) complete a copy of vba-21-4138. The OCSE should complete the form. They need to specifically state how much child support is awarded based on NOT including any payments under Title 38. They also need to specifically identify a monetary amount for the "NEED" of the child. This can be either the state standard or based on special needs as long as documentation is provided. The USDVA needs this to see the exact amount needed to fill the gap. Any conditions of abuse or other factors of the child's life should be included with documentation. These will also be taken into consideration.