How Divorce, Alimony, and Child Support Affect Veterans' VA Benefits

If you are a veteran considering divorce or currently going through divorce proceedings, you may be concerned about how this process may affect VA income resulting from property division, alimony, and child support decisions.

Each state has its own laws governing divorce, child support, and alimony. But there are also federal laws governing the distribution of veteran’s benefits, and state family law courts are required to adhere to these laws. Veterans may be relieved to learn that Federal law provides them with certain protections.

Disabled veterans receiving disability compensation or pension are often concerned about losing a portion of their disability benefits as part of the property division in a divorce. They needn’t be concerned about this. Under the Uniformed Services Former Spouses’ Protection Act, VA disability payments are exempt from being treated as marital property and cannot be divided as part of a divorce.

VA benefits are protected from being garnished to pay unpaid taxes and most creditors’ claims, but in certain circumstances, VA benefits can and do get garnished. This is because the purpose of VA benefits is to provide support not just to a veteran, but to his or her family.

In the event that one fails to make alimony (spousal support) and child support benefits, the state can sometimes order VA benefits to be garnished. This can be done because Congress specifically set out in Title 38 that VA benefits are intended to be used to provide support for dependents. The amount that can be garnished will vary based on how many dependents are supported.

However, VA disability compensation cannot be garnished at all unless part of military retired pay was waived in order to receive VA disability benefits. In other words, if a portion of a taxable military retirement fund was waived in order to receive nontaxable disability compensation, disability benefits can be garnished to meet alimony and child support obligations. Only the amount of the disability compensation paid in place of retirement pay can be garnished. The remainder of the disability compensation is protected.

Under certain circumstances, states cannot garnish VA benefits to satisfy alimony or child support obligations. Garnishment is not permitted when:

• garnishment would cause undue financial hardship
• a former spouse or a child has not filed for “apportionment”
• a former spouse is living with another person and “holding her or himself out as the spouse of that person” (meaning acting like they are married and perhaps referring to each other as husband and wife), or
  • a former spouse was found by state court to have been guilty of “conjugal infidelity” (cheating).

Note that if a child has been adopted, generally only partial garnishment will be permitted.

Even if VA benefits can’t be garnished because military pay was not waived or because of any of the above reasons, in most states VA income can still be considered by the judge in deciding your support obligations. If VA disability benefits are a significant part of your total income, you may end up using your benefit income to meet child support or alimony obligations.

For legal help in protecting your VA disability benefits or establishing a fair amount of support, contact a lawyer experience in VA benefits and divorce.