Here you go! I ended up doing all 3 in a sitting, so didn't post individually:
1) does the Veterans' Disability Protection Act of 2010 specifically exempt (and reaffirm exemption) of VA disability compensation from income calculations for the purpose of ex-spousal maintenance?
No. In Rose v. Rose (1987), the U.S. Supreme Court found that "these benefits are not provided to support appellant [the veteran] alone." It went on to state that Congress clearly intended veterans' disability benefits to be used, in part, for the support of veterans' dependents. Family support is one of the purposes for the VA payments given to a veteran. The provisions for dependents, found at 38 U.S.C. 1115, are:
Any veteran entitled to compensation at the rates provided in section 1114 of this title, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents in the following monthly amounts... (1) If and while rated totally disabled and- (A) has a spouse but no child, $150; (B) has a spouse and one or more children, $259 plus $75 for each child in excess of one; (C) has no spouse but one or more children, $101 plus $75 for each child in excess of one; (D) has a parent dependent upon such veteran for support, then, in addition to the above amounts, $120 for each parent so dependent;
So, while the benefit can't always be garnished, (38 U.S. Code section 5301) the amount may be considered income to be used in the calculations. I don't see the VDPA changing that.
When it comes to garnishment, yes, the payments are exempt, unless the individual who is receiving VA benefits has waived military retired pay to obtain the VA payments. See Title 42, U.S. Code, Section 659. (
("(h) Moneys subject to process
(1) In general
Subject to paragraph (2), moneys payable to an individual which are considered to be based upon remuneration for employment, for purposes of this section-
(A) consist of-
...(ii) periodic benefits (including a periodic benefit as defined in section 428 (h)(3)
of this title) or other payments-... (V) by the Secretary of Veterans Affairs as compensation for a service-connected disability paid by the Secretary to a former member of the Armed Forces who is in receipt of retired or retainer pay if the former member has waived a portion of the retired or retainer pay in order to receive such compensation
So, if you waived your retirement pay to get your VA benefit, your benefit can be garnished. 2) Same question regarding Social Security Disability compensation?
No, this is not true, SSD can be both used in the calculation and garnished directly for alimony
3) Lastly, are VA and Social Security compensation payment exempt from being awarded to an ex-spouse? (I understand using these compensation monies for child support calculations and awards, because children are still "Family".....)
This is 2 questions:
A) VA Disability benefits: Federal law, specifically the Uniformed Services Former Spouses' Protection Act, found at 10 U.S.C. 1408 - exempts VA disability payments from division upon divorce. It is not an asset which can be divided at divorce as marital or community property
B) SSD is not considered a marital asset, but an income, thus, it can not be awarded in distribution of assets. However, it can be used as income in the calculations of alimony and it can be garnished. 42 USC 659. http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/1712/~/garnishing-social-security-benefits I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.
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