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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 117375
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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I am divorced and paying child support. I filed am now

Customer Question

I am divorced and paying child support. I filed for and am now receiving VA disability. Do I need to report this or revise my child support amount, or is VA disability not utilized in determining child support, and if I do not report it and later she petitions my income will they try get back pay? The disability is equal to 11% of my gross monthly income.
Submitted: 1 year ago.
Category: Family Law
Customer: replied 1 year ago.
also, I did not list any dependents on my VA disability. Therefore I am not receiving any additional funds from disability due to family members.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Social Security Act and the statutes governing benefit payments by the VA do provide for processes by which dependents may obtain financial support from a veteran's benefits under certain circumstances. VA regulation 38 CFR 3.450 (a)(1)(ii) provides that if the veteran is not residing with his or her spouse or if the veteran's children are not residing with the veteran and the veteran is not reasonably discharging his or her responsibility for the spouse's or children's support, then the veteran's pension, compensation, or emergency officer's retirement pay may be apportioned. See 38 U.S.C. § 5307.
However, this does not mean that VA income is not considered as income by AL for purposes of calculating support. AL law says that income from ALL SOURCES is considered including VA pension benefits. The law generally is that such benefits may be considered as a resource for purposes of setting the family support and that doing so does not constitute an affront to the Federal anti-attachment and anti-alienation provisions, such as 38 U.S.C. § 3101 and 42 U.S.C. § 662(f)(2). See: Mims v. Mims, 442 So.2d 102 (Ala. Civ. App. 1983).
You do need to notify the VA to modify your benefits to include your dependents. The money you get from the VA can be used for purposes of calculating your support obligation, so if you fail to report it she can get arrears. She can also force you to add the children as dependents on your benefits.
Customer: replied 1 year ago.
Disability and pension are two separate entities "VA pension benefits". After reviewing veterans disability protection act of 2010 and 2012, I thought the point of this was to inform the district judges of the federal law that VA disability is that of the veterans and not spouse or dependent. However, in case rose vs rose I believe where disability is the sole income it would be utilized in calculating the child support. Am I incorrect in the above?
Customer: replied 1 year ago.
My apologies, I forgot to include, unless additional benefits are received due to having dependents in such case the additional amount received due to dependents will go to the dependent.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
I understand that and for garnishment purposes you are correct, but the case law in AL and in the federal courts does not prevent the court from considering the money you are receiving from those VA disability benefits as income to you, that is why I provided you all of the case law and the statutes above, to show you that while it is exempt under anti-alienation provisions, it is NOT exempt from being included in your income calculations.
Also, if you get dependent benefits, you can then move the court to reduce your support payments to give you credit for the amount they receive in dependent benefits from your VA disability.