Should Veteran Disability Benefits be divided in Family Court

In recent news, a disabled veteran has asked the U.S. Supreme Court to reconsider whether individual states should be allowed to consider a veteran’s disability compensation in calculating spousal support; and additionally whether federal law bars state courts from considering Veterans Administration disability benefits communal property to be divided in divorce like other marital assets.

This case involves the divorce of Peter James Barclay, an Air Force veteran, wherein an Oregon district court judge in 2010 considered the value of Peter Barclay’s VA disability payments in awarding spousal pay of $1,000 a month. He was married for nearly 20 years and his only income comes from VA benefits and Social Security Disability Insurance, a tax-free total of just more than $4,400 a month.  Barclay, 42, suffers from post-traumatic stress from his role as a Tinker Air Force Base first-responder to the 1995 bombing of the federal building in Oklahoma City, Okla. Subsequent PTSD made him unemployable and eligible to draw VA compensation at the 100 percent disabled rate.

Barclay argued at trial that to include his disability pay in calculating spousal support would violate federal law. The court ignored that argument and the Oregon court of appeals affirmed the decision.  Following an appeal, the U.S. Supreme Court is being asked to consider whether Title 38 U.S. Code, Section 5301(a), which makes VA disability benefits immune “from taxation, claims of creditors, attachment, levy and seizure,” also doesn’t bar inclusion of disability pay, directly or indirectly, in spousal support calculations.

What is your opinion on this subject?  Do you think that states are ignoring the federal law or do you think disability pay is designed to compensate solely the veteran for loss of income because of a service-connected medical condition?

This situation is further confused by the fact that different states follow different rules regarding veteran disability benefits.

I would love to hear your opinion about this or you can share your personal story.

Story source, Tom Philpott, Military Update


This entry was posted in Alimony, Child Custody, Divorce, Military Retirement. Bookmark the permalink.

3 Responses to Should Veteran Disability Benefits be divided in Family Court

  1. Walid says:

    Each State has a website that lists forms and poudecrres to get a divorce. Also some courts, especially divorce courts offer assistance in filling out forms. So go online and look up the court in your area or go to the court in your area that handles family law stuff. Not all lawyers charge so much. But alas most do.

  2. Barradas says:

    The certificate just shows it’s done the decere shows the detail of the settlement. I believe court documents are open to the public unless the couple requests they be sealed. You will have to pay the court house to get copies

  3. William Heino Sr. says:

    State court violation Separation of Powers DISABLED VETERANS

    If, and when the question is a disabled veteran’s VA disability compensation as alimony/support, something to consider first.
    The “separation of powers” doctrine is completely ignored by Oregon and most state court judges, acting like doctors, holding themselves as qualified, as a provider of health care, policy making outside their jurisdiction. Substituting their judgment for the judgment of VA doctors and medical professionals awarding as alimony a disabled veteran’s VA disability compensation. To allow what has been happening, was this the intent of Congress?
    Constitution of Oregon
    Section 1. Separation of powers. “The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.
    If the United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, ruled, “As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it,…” As well, Oregon courts are in no legal position to do so. Despite the law, it continues.
    “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)”
    14th Amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any State deprive any person of life, liberty, or property, with due process of law, ..”

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