Veterans in the midst of a divorce often question how their VA disability compensation will be treated in the process. They are often surprised to find out that their VA disability benefits will likely be considered determining how much child support he or she should pay. Although some individual states may have exempted VA disability benefits from consideration in child support, the Supreme Court in Rose v. Rose (1987) found that disability payments could be considered when determining child support obligations. The Court noted that “children may rightfully expect to derive support from a portion of their veteran parent’s disability benefits.” This means that federal law does not prevent a state court from ordering a veteran to pay child support in an amount that necessarily would require the veteran to use VA disability benefits to satisfy the obligation.
Another related question we receive from veterans is “Can my service-connected disability payments be garnished or seized for child support that I owe?” The simple answer is no. Under 38 U.S.C. § 5301, disability benefits paid by the VA are not subject to levy, seizure, or attachment.
But one word of warning. There is a situation in which your VA disability payment can be garnished for failure to pay child support, and it is not uncommon. Your VA disability payments can be garnished if you waived part of your military retired pay in order to receive VA disability benefits. In other words, if you waived part of your taxable military retirement to receive nontaxable disability compensation, your disability benefits can be garnished to meet child support obligations. Only the amount of the disability compensation you were paid in place of retirement pay can be garnished. The remainder of your disability compensation is protected from garnishment.
While in most cases VA disability benefits cannot be garnished, attached, or seized to pay child support obligations, they can, in some cases, be apportioned. Apportionment is the process by which the VA assigns a certain portion of a veterans benefits to a family member. Through this process, the VA will directly pay the eligible family member part of the veteran’s benefit(s).
The custodial parent must apply for apportionment by filing VA Form 21-0788, Information Regarding Apportionment of Beneficiary’s Award, before a garnishment for child support will be considered. The Regional Office will consider the facts and circumstances of the case and issue a decision. The Regional Office will make one of three possible decisions:
- If the person claiming the child support (apportionment) for the children does not show that the children have a financial hardship, then the apportionment will be denied.
- If the person claiming the child support has shown financial hardship, BUT the veteran will also suffer financial hardship from the loss of the money, then the apportionment will be denied.
- If the person claiming the child support shows financial hardship AND the veteran does not show that he will suffer financial hardship, then the apportionment will be granted.
Veterans have the right to appeal an apportionment decision before it becomes effective, but if it is clear that the money is owed and the veteran has no other extenuating circumstances, the apportionment will be expeditiously enforced.
It is also important to keep in mind that in many states money collected through apportionment and delivered to the custodial parent may not actually count, as far as the state is concerned, as a child support payment. Most states require that child support payments be made and recorded through the state’s child support enforcement agency which means that payments made through apportionment might not be applied to any child support arrears as far as your state child support enforcement entity is concerned.
Please remember that issues involving divorce and spousal support are governed by state law. Therefore, you should consult an attorney licensed in your state for specific information and advice regarding spousal support obligations and divorce. The information provided here is general in nature, and, as with most legal concepts, there are exceptions to almost every rule. An attorney can advise you of the rules and exceptions as they apply to the specific facts of your case.