What Becomes of Your Veterans’ Benefits in a Florida Divorce
Many U.S. veterans are concerned about what will become of their VA benefits in a divorce, and they worry about how much of their VA income they will lose to property division, alimony, and child support. While each state has its own laws governing divorce and support payments, the laws governing VA benefits are federal, and all state family law courts are required to adhere to them. Under federal law, veterans’ benefits are subject to certain protections that other disability benefits are not. At the Law Offices of Schwartz | White, our divorce attorneys will help you navigate the divorce process and do everything possible to protect the benefits that are rightfully yours.
Veterans’ Disability Benefits Are Not Subject to Property Division
It is common for disabled veterans to put off applying for disability benefits until after their divorce is finalized, as they do not want their benefits to be distributed as marital property typically is in Florida: equitably. However, disabled veterans need not worry about half of their benefits going to their former spouses; under the Uniformed Services Former Spouses’ Protection Act, VA disability benefits are not subject to division in a divorce. They are the sole property of the veteran who earned them.
Can VA Benefits Be Garnished?
While VA benefits cannot be garnished to pay unpaid taxes or to pay off creditors, they can be garnished if you fail to make alimony or child support payments. This is because, under Title 38, veterans’ disability benefits are intended to provide support to dependents. Furthermore, the amount of benefits a veteran receives is calculated based on family size. If you fail to make the required support payments, the government is entitled to garnish your benefits. The amount that can be garnished, like the amount you receive, is based entirely on how many dependents you have.
However, in order to be eligible for garnishment, you must have waived part of your military retirement pay to receive VA disability benefits at all. This is because military retirement benefits are taxable, while your disability benefits are not. If you waived part of your taxable income for non-taxable income, then your benefits will be eligible for garnishment to meet alimony and child support obligations. Only the amount of disability benefits that compensate for the waived retirement benefits may be eligible for garnishment, though.
Even if you waived part of your taxable retirement pay to receive non-taxable disability benefits, your VA benefits cannot be garnished if you the following apply to you:
- Garnishment would cause you undue financial hardship;
- Your former spouse is living with another person, and acts as husband/wife to that person; or
- Your former spouse was found by the state court to have been guilty of infidelity.
Are VA Benefits Considered Income?
Even if your benefits are not eligible for garnishment to satisfy support orders, they may be considered part of your income for purposes of determining support amounts. However, a judge will typically only consider your disability benefits if they make up a majority of your monthly income.
Our Boca Raton Family Lawyers Can Protect Your Benefits
At the Law Offices of Schwartz | White, our Boca Raton divorce attorneys can protect your VA disability benefits from being treated as marital property, or from becoming subject to spousal support payments. To consult with one of our attorneys regarding the protection of your disability benefits in a Florida divorce, call 561-391-9943 today, or schedule a private consultation online.
Resources:
law.cornell.edu/uscode/text/38
military.com/benefits/military-legal-matters/uniformed-services-former-spouse-protection-overview.html
