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My husband is a 100% service-connected disabled vet. He has…

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My husband is a 100%...
My husband is a 100% service-connected disabled vet. He has been threatening divorce and leaving me with no money. Last year a rep told me I would get $1,200 a month, which was my allottment amount. Is this still true?
Submitted: 4 years ago.Category: Military Law
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Answered in 2 hours by:
3/8/2014
Military Lawyer: Lawrence D. Gorin, Lawyer replied 4 years ago
Lawrence D. Gorin
Category: Military Law
Satisfied Customers: 1,544
Experience: Military & Family Law. 30+ years experience. USFSPA pension division expertise.
Verified
ANSWER:
No, that is not true. Controlling law is the Uniformed Services Former Spouses’ Protection Act, which says that VA disability compensation payments under Title 38 of the U.S. Code are not subject to property division upon divorce. The same is true to a large extent with military disability retirement payments under Title 10, Chapter 61 of the U.S. Code.

By way of further explanation:

The USFSPA allows a state divorce court to treat a servicemember's entitlement to disposable retired pay as marital property in a divorce proceeding and to award a portion thereof to the servicemember's former spouse.

 

However, military disability pay is excluded from the definition of disposable retired pay, and therefore, disability pay is not subject to the same rules of division in divorce. Generally, a retiree who is otherwise entitled to retired pay must waive the entitlement on a dollar-for-dollar basis in order to receive disability pay. And disability pay is beyond the reach of the divorce court, at least as to treating such pay as a marital property asset.

 

There are two different types of military disability pay, both of which are excluded from the USFSPA definition of disposable retired pay: (1) military disability retired pay, and (2) VA disability compensation.


Military disability retired pay is available for service members who are sufficiently disabled that they can’t perform their duties. Members that have enough creditable service (meaning years served) may be placed on the “disability retired list” and draw disability retired pay. Military disability benefits are not considered "disposable retired pay" and cannot be divided between spouses in divorce court.

VA Disability Compensation comes from the Department of Veteran’s Affairs. This compensation system is meant to cover injuries or disabilities that occurred while on active duty, or which were made worse by active service, including mental or physical injuries that are service-connected: the injuries don’t have to occur while in active combat. For example, VA disability compensation could cover something like a shoulder injury that is the result of routine physical training. The disability rating system used for VA compensation measures the extent of the disability and its effect on the service member’s employability.

 

Service members must waive a certain amount of retired pay in order to receive VA disability compensation. As stated above, VA disability compensation cannot be divided between spouses in a state divorce court. If a service member waives any portion of military retired pay in exchange for VA disability, the amount waived is subtracted from the amount available to the former spouse.


CLICK HERE for more information.


=========================
NOTE:
I realize that this answer may not be entirely to your liking, and I regret being the bearer of information that you really don’t want to hear. But it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.

Further, I do hope you understand that the fact that this answer is not favorable or agreeable with your goals is not an appropriate basis for giving a negative "rating" to the answer as provided. Obviously, I would much prefer to give you a different answer, but the facts you are presenting simply do not legally support such a conclusion. Thank you.

L.D.Gorin

 

 

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