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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 18808
Experience:  Lawyer and current JAG officer.
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I am receiving retired disability payments and 100%

Customer Question

I am receiving retired disability payments and 100% disability pay from the VA. I am getting ready to divorce my wife and would like to know what monthly amount she is entitled to.
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

She is actually not entitled to any portion. That's not how the law works with regard to military retirement. It doesn't create any sort of automatic entitlement. All it does is allow state courts the right to divide military retirement in the same fashion that they can divide civilian forms of retirement.

The court can grant her 50% of your military retirement, 0% or something in between based on a formula that the court chooses to apply. Typically, courts take into consideration the length of the marriage which overlaps the length of the military service, granting a percentage based on that (so if the military career lasted 20 years, the marriage overlapped 10 of those years, the court might grant 10/20 times .50 or 25%.)

Customer: replied 1 year ago.
What about my disability payments from the va?
Expert:  Allen M., Esq. replied 1 year ago.

Ok. The VA disability payments are a sticky subject. Federal law never intended those to be divisible and for most situations they can't be garnished. However, the Supreme Court essentially passed on the subject of whether or not they can be divided in a divorce.

As with military retirement, there is no entitlement for her to have any of it and there is even less risk that she'd be awarded any of it, but it does sometimes happen. The courts can look at your total income, retirement and disability included and grant her spousal support if she has no earning ability.

It is very rare though for a former spouse to get a portion of disability.

Customer: replied 1 year ago.
Even though it is up to the state court to decide, what argument would you propose for her not to be granted any of the VA disability and the Disability Retirement from the Army?
Expert:  Allen M., Esq. replied 1 year ago.

There really isn't a legal argument, because again, legally she can get it.

It would need to be a factual argument, so you'd need to show your reduced earning ability based on the disability. Unlike regular retirement, which can be supplemented by a full time job, disability is intended to cover your inability to work or at least your reduced earning potential.

It is that factual argument that can help the court decide not to divide it.

Customer: replied 1 year ago.
Does this apply to Medical disability retirement and VA disability payments?
Expert:  Allen M., Esq. replied 1 year ago.

Yes, it applies to either. The argument is the same for both forms of pay.

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