With the exception of Arizona -- due to a misguided 2010 law enacted by the Arizona legislature -- every state in the nation (to the best of my knowledge) allows divorce courts to "CONSIDER
" VA disability compensation as "income" for purposes of fixing child and spousal support
Courts across the country have said that while VA disability compensation is not subject to being treated as a marital property asset subject to direct division between divorcing spouses (as is permitted with regard to military retired pay), the court's "consideration" of such income in fixing the appropriate amount of child or spousal support does not amount to a "division" of the disability compensation.
But in 2010, the Arizona legislature enacted HB 2348
. This was a two-part bill.
Part One said:
In making a disposition of property pursuant to section 25-318 or 25-327, a court shall not do any of the following:
----> 1. Consider any federal disability benefits awarded to a veteran for service-connected disabilities pursuant to 38 United States Code chapter 11.
-----> 2. Indemnify the veteran's spouse or former spouse for any prejudgment or postjudgment waiver or reduction in military retirement or retainer pay related to receipt of the disability benefits.
-----> 3. Award any other income or property of the veteran to the veteran's spouse or former spouse for any prejudgment or postjudgment waiver or reduction in military retirement or retainer pay related to receipt of the disability benefits.
Part Two said:
------ > In determining whether to award spousal maintenance or the amount of any award of spousal maintenance, the court shall not consider any federal disability benefits
awarded to the other spouse for service-connected disabilities pursuant to 38 United States Code chapter 11.
Part One is now ARS 25-318.01
Part Two is now ARS 25-530
To see how this got enacted, take a look at video clip
of the testimony presented to the House Military Committed when the bill came up for hearing. Basically, it was sponsored by one legislator at the request of a military disabled constituent. The constituent had gone through a divorce and believed the the divorce court judge had treated his VA disability compensation as community property and had awarded a portion of it to the ex-wife
. So on that basis. the Arizona legislature passed the law that, in sum, says the Arizona divorce court judges may not federal military DISABILITY BENEFITS as marital property
The second part of the bill said:
-----> "In determining whether to award spousal maintenance or the amount of any award of spousal maintenance, the court shall not consider any federal disability benefits awarded to the other spouse for service-connected disabilities pursuant to 38 United States Code chapter 11."
So it is now the law of Arizona that disability benefits
awarded to the other spouse for service-connected disabilities pursuant to 38 United States Code chapter 11 may not be "considered" by the judge in determining and fixing the amount of spousal maintenance.
But what apparently was not understood by the legislators and the proponents of HB 2348 is the basic fact that CRDP is not
disability pay. Rather, CRDP is a reinstatement and restoration
of retirement pay. It becomes taxable, just like regular retired pay. And as such it become subject to being treated as property (marital asset) subject to division between divorcing spouses. Nothing in the law establishing CRDP suggests otherwise.
CRDP allows military retirees to have retired pay that was previously waived in order to receive VA compensation now RESTORED, thus effectively allowing the qualified retiree to receive an amount of RETIRED PAY that is (or will be) equal to the total amount of combined disability comp AND retired pay, with the entire benefit being classified as RETIRED PAY (and not as disability compensation).
So while ARS 25-530 clearly bars the divorce court judge from "considering" husband's federal disability benefits (awarded to the veteran for service-connected disabilities) in determining whether to award spousal maintenance or in fixing the amount thereof, that law does NOT pertain to CRDP. Again: CRDP is NOT a "disability benefit." CRDP is simply RETIRED PAY that has now been restored.
And the amount of a retiree's retired pay
certainly can be considered when determining child and spousal support amounts.
Hope this explains.
Finally, as to where you can court cases where CRDP was considered by the Court in the total income of "SpouseX" vs. "SpouseY" for purposes of deciding and awarding the amount of marital support IN THE STATE OF ARIZONA and the consideration influenced/resulted in an increased amount of maintenance that was ordered, I suspect that you will not find any such cases. (I have looked, by the way, using the research tools that I have available). The CRDP is rather new, so ther has not been much if any litigation about it. Also, given the 2010 enactment of HB 2348, I suspect that nobody in Arizona is of sufficient understanding of military divorce
law to realize that CRDP is not
disability comp but rather is simply restored retired pay. So YOU will be the first one is AZ to raise the issue and make that argument. And it will probably be your case that goes up on appeal and makes new law for your state. So...... YOU GO GIRL
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