A Different Type of Battle
Divorce is a stressful and emotional situation. Whether you are a spouse of a military veteran or you are a vet worried about what will happen to your benefits after divorce, this article will help answer all of the questions you have regarding VA benefits and divorce.
Here are the two most common questions our office receives:
● Spouses: Will I still be entitled to my spouse’s benefits?
● Vets: What will happen to my benefits after divorce?
Here is the short answer: Disability payments are NOT subject to divorce settlements but are subject to domestic relations income guidelines. However, it is a little more complicated than that as there are other implications and benefits that complicate the divorce of a disabled veteran.
VA Disability Payments Cannot Be Divided As Marital Property in a Divorce
First off, VA disability payments cannot be divided in a divorce.
Mansell v. Mansell, 490 U.S. 581 (1989), a landmark federal case, explicitly authorizes states to not treat VA disability payments as marital property, which means states do not have the power to take a portion of your monthly VA benefits payments and give to your spouse in equitable distribution but are able to use it to calculate one’s earning capacity when calculation spousal and child support.
While disability payments cannot be treated as marital property, a non-military pension can be treated as marital property.
Your Pension Can Be Divided As Marital Property
It is imperative to know that disability benefits are excluded in a divorce, yet a traditional military pension is considered marital property.
Yet, strict requirements must be met in order for a military pension to be eligible for division:
● The spouses must have been married for a minimum of 10 years.
● At least 10 years of the marriage must have coincided with the veteran’s time in military service.
The Uniformed Services Former Spouse Protection Act (USFSPA) allows for each court to apply the laws and principles of the jurisdiction where the divorce action was filed when determining the division of military pension. The courts can permit the military spouse to retain all of their pension, but they may be asked to compensate their spouse's portion from other marital assets.
VA Disability Counts as Income for Child Support & Alimony
Aside from your pension, VA benefits alone are not technically considered marital property. However, the income you receive from the VA can be counted towards your monthly income amounts.
Although these payments are tax-free and unseen by the IRS, other agencies will factor in your VA disability payments when calculating child support or alimony payments.
In the case of Rose v. Rose, 481 U.S. 619 (1987), The Supreme Court ruled that VA disability payments are NOT solely for the veteran, citing that the payments should be used to “provide reasonable and adequate compensation for disabled veterans and their families.”
The court concluded that veterans’ benefits are to be used to support the veteran AND their dependents.
Disability payments will never be divided in a divorce. But if there are child support, maintenance, or alimony payments in the discussion, the amounts will likely be influenced by the veteran’s compensation.
Both Spouses May Be Able To Continue Access To Trident Insurance
Another VERY important benefit that veterans and their families rely on is their access to free or discounted healthcare under the Trident or Tricare health insurance plans. Maintaining access to affordable health insurance is absolutely critical for a lot of families, especially in cases where the ex-spouse is unable to return to the workforce and still heavily relies on these benefits for themselves or the children.
Fortunately, both spouses can maintain their access to healthcare if:
● The military spouse served at least 20 years in the military
● Spouses were married for 20 years during the period of military service
● An employer isn’t providing private health insurance
● The spouse does not remarry.
In addition, the military also provides continued access to the post-exchange and base supermarket to spouses who were married for 20 years or more of service.
There are a lot of different elements when it comes to VA disability benefits — it goes without saying that this can add some challenges when handling your divorce. It’s always a good idea to check with an experienced VA disability lawyer when a military spouse is involved in a divorce. Make sure that the compensation the veteran is receiving is exactly what they are entitled to.
Reach Out to a Veterans Disability Lawyer
Before you begin splitting hairs over calculating income from disability benefits or dividing military pension, you should consider talking with a VA Disability Lawyer.
You’d be surprised how many veterans are actually eligible for a higher disability rating — a higher disability rating means higher disability payments. It’s a simple phone call to discuss your situation and determine if a higher compensation should be provided for the veteran (and their family).
Knowing that the maximum amount possible is being paid out for these benefits really helps families move through the divorce process a little easier.
If you need help determining your compensation amounts or fighting for what you deserve, reach out to a veteran disability lawyer today.
Questions About Divorce?
Experienced legal guidance is a must when you are dealing with divorce. There is too much at stake, and if you have children together, own a home, or own a business, the matter only gets more complicated.
We help our clients navigate through these issues every day. If you need help with a divorce or custody issue, please contact our office now. We’ll help you get clarity on what’s next.
If you need help with your VA Disability Claim please contact our preferred referral partner at Vet.Law.