Can a spouse get part of your VA disability through a divorce settlement?

2019-05-02T05:38:16-04:00

Response by LTC John Griscom made May 2 at 2019 8:43 AM

2019-05-02T08:43:44-04:00

Only at gunpoint.

Response by MSG Private RallyPoint Member made May 2 at 2019 10:19 AM

2019-05-02T10:19:21-04:00

No. And here is the link for your reference. Look at #4

https://statesidelegal.org/va-disability-compensation-and-divorce-facts-and-fallacies

VA Disability Compensation and Divorce: Facts and Fallacies | Stateside Legal

Thanks to Mark Sullivan, prominent leader in family law matters involving veterans, for sharing this Q & A with Stateside. This is part of a series of "Legal Eagle" publications produced by Mr. Sullivan.

Response by SSgt Private RallyPoint Member made May 2 at 2019 10:48 AM

2019-05-02T10:48:35-04:00

SSgt Joel Britt no, sir! My ex tried to pull that, and was flat out informed "no". No only because she did not earn MY disability payment (or help me earn it - not sure how she could've "helped me earn it"), but also because I was discharged before we met (but that was the minor point made to her).

Response by 1SG Eddie Smith made May 2 at 2019 11:10 AM

2019-05-02T11:10:50-04:00

VA compensation cannot be part of a divorce settlement, that I know of.

State law may come in to play, so that's something to look at.

However, the spouse can file for apportionment from the VA using VA form 21-0788, provided they would even be aware of that.

Take a look at 38 CFR 3.450-8 which covers recruitments.

Response by SFC Private RallyPoint Member made May 2 at 2019 11:48 AM

2019-05-02T11:48:19-04:00

Federal law prohibits disability and GI Bill from being taken in divorce settlements. Your spouse is only entitled to the non-disability portion of your retirement

Response by Patricia Overmeyer made May 2 at 2019 1:04 PM

2019-05-02T13:04:39-04:00

SSgt Joel Britt: Many states have an indemnity clause requirement where if the military veteran waived portions of military retirement for VA disability pay, the military veteran would be required to reimburse the former spouse for that loss. In other words, while DFAS had not been apportioning part of the military veteran's VA disability to the former spouse, the state court could order the veteran to reimburse the former spouse. The US Supreme Court held in Howell v. Howell (137 S.Ct. 1400) that the state indemnity clauses were not allowed pursuant to the Uniform Former Spouses Protection Act, 10 U.S.C. §1408(a)(4)(B).
However, the Howell case was based on Arizona case law which had stated that a veteran who later waived military retirement for VA disability could not arbitrarily reduce the former spouse's share. So the major question which has arisen since the Howell case is whether or not the parties to a divorce settlement can include an indemnification clause for the reduction of military retirement due to a VA waiver. The reason for this question is that when two parties to a divorce enter into a settlement agreement (not a trial with a decision made by the judge), the settlement agreement is a contract which is binding upon the parties, that the parties have freely entered into, etc. So if you were to agree that your former spouse could obtain a part of your VA disability through a divorce settlement agreement, the question then becomes one of contract law and not of federal law superceding state law by requiring an indemnification.
One other issue which was raised by the Howell case is the awarding of more community assets, increasing spousal maintenance and other ways in which state courts would be able to compensate the former spouse for the reduction of the military retirement for VA disability pay.
You need to talk with an attorney in your area that handles family cases and has an understanding of the military issues which arise in divorce cases. You can then talk with the attorney regarding this issue in much more detail. If you are looking for an attorney in your area that handles family law with an understanding of military issues, please contact your state bar or the ABA Military project for possible referrals.

Response by SSG Dale London made May 6 at 2019 10:10 AM

2019-05-06T10:10:23-04:00

Nope. It's all yours -- along with the crap that made you elligible for it in the first place.