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Disability Payments to Former Spouse?

posted Aug 21, 2011, 3:27 PM by Info @NesloVentures   [ updated Aug 21, 2011, 3:30 PM by Neslo Ventures ]
Sgt. Shaft | August 09, 2011
Courtesy of Military.com

Dear Sgt Shaft:

I am in the middle of a divorce after 18 years of marriage. I receive service-connected disability from the VA from when I was in the Army. My wife and I were not married when I was in the service or when I started to receive my disability payments. I am now 100 percent disabled and unable to work. My wife has been working full time for the same company for the last 16 years.

In the divorce, she is asking to receive half of my disability payments for maintenance. Is there any federal law that states my disability cannot be used for maintenance?

I have a brother who served 23 years in the Marines and was married for the last 17 years of his enlistment. When he divorced last year, his wife was given a portion of his pension but was told she is not entitled to any of his disability payments. I would appreciate any help you can give me.

Thank you,
Gary P.
Via the Internet

Dear Gary,

There are currently no provisions for payment of any portion of a veteran's service-connected disability compensation to or on behalf of a divorced spouse except in limited circumstances involving military retirees. 38 USC 5301(a) exempts VA disability compensation from taxation, claims of creditors, attachment, levy or seizure, by or under any legal or equitable process.

However, in the case of military retirees who waive retired pay in lieu of VA compensation, the amount of VA compensation that is received is subject to garnishment for court-ordered child support or, in some cases, alimony. Only the amount of compensation equal to the waived retired pay is subject to this garnishment. Such garnishments are handled jointly by the VA Regional Office and the appropriate VA Office of Regional Counsel. If there were any minor or dependent children of the veteran in the custody of a divorced spouse, an apportionment of VA disability compensation could be awarded to the custodial parent for support of the veterans child or children.

Individuals can file a claim for an apportionment by filling out VA Form 21-0788, which can be found at http://www.vba.va.gov/pubs/forms/VBA-21-0788-ARE.pdf.

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