Divorce & Veterans Disability Pension
By Melanie Jo Triebel
When couples consider divorce, one of the first questions that usually arises is who will get what. Couples are often confused about such matters as pensions, disability pay, Social Security benefits, and other forms of income which may have accrued during the marriage but will continue to be paid after the divorce is final. When it comes to veterans disability pay, some aspects of what happens during divorce are crystal clear nationwide. Others, however, vary from state to state.
Veterans disability pensions, much like Social Security disability benefits, are designed to compensate individuals who are disabled and thus can no longer work. However, veterans disability pensions are only for those who served in the U.S. military. Veterans who receive disability pension money are entitled to receive additional amounts each month if they are married, but this entitlement ends in the event of divorce.
The Impact of State Law
While federal law governs a veteran's eligibility for a disability pension, as well as the amount of the pension, state law varies with regard to what happens to that pension in the event of a divorce. While federal law governs the treatment of the disability pay during the division of the marital estate, state law governs how a veteran's disability pay affects orders for spousal support.
Dividing the Pension Between Spouses
A veteran's disability pension is not considered a marital asset which can be divided upon divorce. In fact, Federal law expressly prohibits state courts from dividing veterans disability pension as part of the divorce decree. Thus, a state divorce court cannot decide that a portion of each month's disability pay belongs to the non-veteran divorcing spouse, or otherwise treat the disability pay as a marital asset or community property.
Considering the Pension When Awarding Support
Many people mistakenly believe that because veterans disability pay cannot be directly awarded to a divorcing spouse, it also cannot be considered when awarding or setting the amount of spousal support. A very few states, such as Arizona, Texas and Vermont, prohibit judges from using this income in setting spousal support. Most states, however, allow or require a judge to consider all sources of income when determining spousal support -- including veterans disability pay. This is true even if the disability pay is the only income the veteran has that can be used to comply with the order of spousal support.
- North Carolina Legal Assistance for Military Personnel: VA Disability Compensation and Divorce – Facts and Fallacies
- Hollins, Raybin & Weissman, P.C.: Division of Military Benefits in Divorce Challenged by Vet
- Lewis B. Puller Jr. Veterans Benefits Clinic: Update: Supreme Court Will Not Consider Whether States May Include Veteran’s Benefits in Spousal Support Determinations
- Cornell University Law School Legal Information Institute: 38 USC § 5301 - Nonassignability and exempt status of benefits
Melanie Jo Triebel has been writing since 2003. Her articles have appeared in such publications as the "ARIAS U.S. Quarterly" and the "Sidley Reinsurance Law Report." Triebel holds a B.A. in music from Chapman University and a J.D. from the Chapman University School of Law. She has practiced law for nearly a decade and is licensed in California and Illinois.