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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
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Experience:  19+ Years of Legal Practice in Family law matters.
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Steven, I read your responses regarding Veterans Disability

Resolved Question:

Steven, I read your responses regarding Veterans Disability Protection Act of 2010, but I'm unclear about your opinion regarding the issue of VDPA protection from spousal maintenance judgements. Is Disability Compensation to be used in calculating Total income for maintenance calculations, AND can compensation be legally awarded to ex-spouses as maintenance?
Submitted: 1 year ago.
Category: Family Law
Expert:  AlexiaEsq. replied 1 year ago.
Hi, thanks for your inquiry! I am trying to determing what "Steven" you are referring to, but you have no prior posts here with anyone, much less "Steven", so perhaps you are in the wrong place. Can you clarify?

Also, if you want assistance with this question from me, not being able to find Steven, let me know.

Sincerely,
Alexia Esq.
Customer: replied 1 year ago.
"Steven" was the person who posted advice on the subject of VA Disability compensation. I simply responded to the post I read - he discussed VA disability compensation as it relates to marital property (I know VA compensation isn't marital property).

My question is: 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?

Same question regarding Social Security Disability compensation?

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".....)
Customer: replied 1 year ago.
Did you receive my previous reply ? Just checking.... :)
Expert:  AlexiaEsq. replied 1 year ago.
Hi, yes, but the system didn't let me answer you until I'd addressed some others' first. I don't know why. In any even, I am pretty sure your guy Steven was not on this site, but perhaps another site that led you here. I am happy to help you:

Your questions that I will answer are:

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?

2) Same question regarding Social Security Disability compensation?

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".....)

I will be back with each answer as it is completed, OK?
Customer: replied 1 year ago.
Sounds great! (I know the VADPA has nothing to do with Social Security; but the fact that it is disability money....from Social Security....that I'm also interested in learning about exempt status).
Expert:  AlexiaEsq. replied 1 year ago.
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.

Sincerely,

Alexia Esq.



-------



I think this is what you wanted to know. If not, please let me know and we can interact further. Otherwise, I wish you the best and ask that you Rate me now. HINT: I aim to provide only EXCELLENT SERVICE and ask that you click a rating on the RIGHT side of the choices OR, follow up with me if you need more follow up or clarification. AND, WHEN YOU DO RATE ME POSITIVELY, PLEASE SEND ME A REPLY LETTING ME KNOW YOU ARE DOING SO, SO WE CAN ENSURE IT GETS RECORDED. THANKS!



You can ask for me directly in the future by starting your post with "To Alexia Esq." Or bookmark this page, and go to: http://www.justanswer.com/law/expert-AlexiaEsq/



Repeat reminder: Due to rules of our states, nothing herein is intended as legal advice, only intended as general information in order that you may have a starting point for helping yourself and presenting your issue to your lawyer if need be. I am an Attorney in the U.S. but I am not your attorney.


Expert:  AlexiaEsq. replied 1 year ago.
Hello again. I hope this email finds you well. Please, if you haven't yet had the opportunity to do either of the below, I ask that you do so now, because my job depends on it. Please:

1) Follow up if clarification is needed on our above interaction/Q&A, OR

2) Rate me highly if we are finished for the time being.

If there's more I can do, please use the reply tab and let me know how I can be of further assistance. It's my goal to provide you with excellent service - to make sure I answered the question you asked about. Please rate me highly and provide me with feedback. And thanks for understanding how we receive credit from the Site for contributing our time here!



Sincerely,

Alexia Esq. - Your Online Legal Professional
Customer: replied 1 year ago.

Dear Alexia, thank you for your research. I am familiar with the Rose decision, and I think you did as good a job answering my question as I did asking it. :)


 


Here is the deal: My wife, who has a Master's Degree - and is now seeking her third degree - is divorcing me. She has never worked a day in her life, and she doesn't want to, either....so, she moved out, left the children with me, but wants to take a chunk of my VA compensation.


 


Since she will no longer be my "Family", for which VA compensation is intended, what would be my best argument in Court to have compensation NOT counted for income calculations?

Expert:  AlexiaEsq. replied 1 year ago.
Hi again, nice to see you this morning.

With regard to your new question:

My wife, who has a Master's Degree - and is now seeking her third degree - is divorcing me. Sorry to hear that.

She has never worked a day in her life, and she doesn't want to, either....so, she moved out, left the children with me, Thank goodness for small blessings. How does she pay her school loans? Or school tuitions?

but wants to take a chunk of my VA compensation. Lol. Amazing, isn't it?


Since she will no longer be my "Family", for which VA compensation is intended Actually, that includes alimony, i.e. former spouses.

, what would be my best argument in Court to have compensation NOT counted for income calculations? That would depend on the court, and caselaw of that jurisdiction. You may be able to find appealed cases where one side made an argument (probably unsuccessfull given the definition of income), but worth looking into just in case. Because I can't imagine why certain income would not be considered as income, since it is what it is. That is why the law tends to be as it is. (Of which I can not access fully without a subscription, which lawyers and nonlawyers alike can get.) However, a better argument may be that she has an income potential of XXX (if need be, get an expert witness of the variety that talks about what a person can be expected to earn given a certain credential, should she seek work) that should be IMPUTED to her. She is voluntarily unemployed. It will likely exceed or meet YOUR income (from all sources), and thus perhaps you can ask for support from HER, since you disabled/unable to work and she is not. Not to mention, child support from her. Unless she is "older" and one can't expect her to work after all these years, at the very least, a min. wage income should be imputed. But I'd push for the Masters level job. Also, if she has wealth (i.e., again how did she pay for school), that can come into play against the need for alimony.

But, if you insist on arguing that your VA income is not income for calculations purposes, then just go with what you said... she is not family. It won't fly though, and may not look so good. Really, if that was a reason, then my working income shouldn't be counted as income because hey, he is not my family anymore. That really isn't the question though. I'd fight this on the actual merits, if you have them. If you are a millionaire and she has nothing but her laziness AND she did stay married a long time AND raised the kids, probably won't work, but if not, I find it the best shot on the realities and the merits.

 

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.

Sincerely,

Alexia Esq.



-------



I think this is what you wanted to know. If not, please let me know and we can interact further. Otherwise, I wish you the best and ask that you Rate me now. HINT: I aim to provide only EXCELLENT SERVICE and ask that you click a rating on the RIGHT side of the choices OR, follow up with me if you need more follow up or clarification. AND, WHEN YOU DO RATE ME POSITIVELY, PLEASE SEND ME A REPLY LETTING ME KNOW YOU ARE DOING SO, SO WE CAN ENSURE IT GETS RECORDED. THANKS!



You can ask for me directly in the future by starting your post with "To Alexia Esq." Or bookmark this page, and go to: http://www.justanswer.com/law/expert-AlexiaEsq/



Repeat reminder: Due to rules of our states, nothing herein is intended as legal advice, only intended as general information in order that you may have a starting point for helping yourself and presenting your issue to your lawyer if need be. I am an Attorney in the U.S. but I am not your attorney.

Expert:  AlexiaEsq. replied 1 year ago.
Hi Will, would you mind rating me today? (or following up if any of my answer is not clear). It is the last day of the month, so if I don't get rated today, I do not get credit this month for devoting time here. Thanks for understanding. And please know you CAN get back into this thread for follow up if needed even after rating. Much thanks.

Sincerely,
Alexia Esq.
AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 11737
Experience: 19+ Years of Legal Practice in Family law matters.
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