Posted on May 2, 2019
Can a spouse get part of your VA disability through a divorce settlement?
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Posted in these groups: 
Divorce
Divorce
Posted >1 y ago
Responses: 7
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No. And here is the link for your reference. Look at #4
https://statesidelegal.org/va-disability-compensation-and-divorce-facts-and-fallacies
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.
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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).
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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
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Nope. It's all yours -- along with the crap that made you elligible for it in the first place.
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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.
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.
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Patricia Overmeyer
SSG Dale London - I can tell you I have seen plenty of veterans with a 100% VA disability rating, receiving their full retirement and CRDP, and still working a 40 hour a week job. VA disability rating has absolutely nothing to do with whether or not one can work, it's simply a rating which states how much the veteran will receive in benefits. The VA is not determining whether or not you can work. It is all based on each claim for a certain condition. I.e. erectile dysfunction gets you a 20% disability rating but unless your work is as a porn movie extra, I don't see how that disability keeps you from working.
I recently had a case in which the veteran had a 100% disability rating but if you look at the way in which each of the "disabilities" was rated they all added up to 100% disability. So he is collecting his military retirement, his CRDP and earning $100,000.00 a year at his job. I'm not the only attorney in this area of family law which sees this on a regular basis. And if you go to CLEs on military retirement issues, this will be something that is taught, in other words have VA disability ratings are determined, what they mean and the fact the ratings are not based on whether or not someone can actually work.
If the veteran were truly 100% disabled and had no way in which to work, then he can apply for VA Rehabilitation benefits as well. They can provide him with job training, including schooling, in order to obtain a job. Too many veterans and civilians who have disabilities fought too hard to get the ADA passed in Congress, myself included. If the disability can be ameliorated and accommodated, then there is no reason that person cannot get a job.
I recently had a case in which the veteran had a 100% disability rating but if you look at the way in which each of the "disabilities" was rated they all added up to 100% disability. So he is collecting his military retirement, his CRDP and earning $100,000.00 a year at his job. I'm not the only attorney in this area of family law which sees this on a regular basis. And if you go to CLEs on military retirement issues, this will be something that is taught, in other words have VA disability ratings are determined, what they mean and the fact the ratings are not based on whether or not someone can actually work.
If the veteran were truly 100% disabled and had no way in which to work, then he can apply for VA Rehabilitation benefits as well. They can provide him with job training, including schooling, in order to obtain a job. Too many veterans and civilians who have disabilities fought too hard to get the ADA passed in Congress, myself included. If the disability can be ameliorated and accommodated, then there is no reason that person cannot get a job.
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SSG Dale London
Patricia Overmeyer - I don't want to argue with you. I cannot refute what you say with regard to your personal experience. But if you read through the VA's website it will become clear that disability compensation is precisely geared towards ability to work. I can't speak to the level of rating ED gets nor the reasoning behind it, nor can I address somebody who's been rated 100% and still pulls down a 6 figure income. I can tell you that if he or she was rated 100% based TDIU and they pull down any significant money at all, if the VA catches wind of it the results won't be pretty. If the rating was schedular then it doesn't matter.
But none of this has anything to do with what I said about taking somebody's disability compensation. Divorce or no, it's evil.
But none of this has anything to do with what I said about taking somebody's disability compensation. Divorce or no, it's evil.
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Patricia Overmeyer
SSG Dale London - The majority of those receiving 100% VA disability rating are scheduler rating and not TDIU. The TDIU is usually not what most veterans are going to apply for due to the fact that TDIU is reviewed annually such that the veteran can be rated as able to work and thus will lose TDIU. So when applying for the disability ratings, veterans will go for the scheduler rating as it is not dependent upon employability and it becomes protected at certain points. The last VA information on TDIU vs. scheduler ratings showed less than 10% were on TDIU, at least per the budge reviews from a couple of years ago.
I don't see it as evil to "take someone's disability compensation" whether it is for divorce or child support. Unless someone is completely disabled to the point of unemployability, then there is no reason to believe they should not work. As I said, way too many of us fought for the ADA and its protections so that we could work. We fought for the right to be hired regardless of a disability, especially those with very visible disabilities. Why should we be treated any differently just because we have a disability? Or more to the point, why should we be treated as some charitable basket case that able bodied people should simply pity, throw us money from the alms boxes and tell us to get out of sight/out of mind because the sight of us upsets their delicate senses? As a person with a disability that attitude is what is evil. Because it renders me and all others with disabilities are far less than human beings.
I don't see it as evil to "take someone's disability compensation" whether it is for divorce or child support. Unless someone is completely disabled to the point of unemployability, then there is no reason to believe they should not work. As I said, way too many of us fought for the ADA and its protections so that we could work. We fought for the right to be hired regardless of a disability, especially those with very visible disabilities. Why should we be treated any differently just because we have a disability? Or more to the point, why should we be treated as some charitable basket case that able bodied people should simply pity, throw us money from the alms boxes and tell us to get out of sight/out of mind because the sight of us upsets their delicate senses? As a person with a disability that attitude is what is evil. Because it renders me and all others with disabilities are far less than human beings.
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SSG Dale London
Patricia Overmeyer - This conversation is only going to go south from here. I'm bowing out. Thanks for a good argument.
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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.
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.
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