While divorces are always emotional cases involving many issues (including children, property, debts, spousal support, child support, and more), divorces involving retired members of the Armed Services can be even more complex than the traditional divorce case. This is because of the special nature of retired veterans and their families. First, in addition to having to comply with state laws regarding the divorce, any divorce that deals with retired military members must also deal with federal statutes such as the Servicemembers Civil Relief Act (SCRA) and the Uniformed Services Former Spouses’ Protection Act (USFSPA). Since these federal statutes preempt even settled state law regarding divorces, it can be quite complex to negotiate the intricacies of this area.
With that in mind, we wanted to draft a series of blog posts to help explain some of the basics of dealing with divorces involving one or more retired military members. This series will only cover retired members of the military, since issues involving active-duty military members are even more complex.
One of the key areas that makes military divorces so difficult is the issue of military benefits. Having a retirement pension, life insurance, and other benefits is certainly not unusual; most companies offer such benefits, and many individuals in the United States have such common benefits. But military benefits, while similar in some ways to civilian benefits, are also quite different in many ways.
So, in this first post, we’ll cover one of the most important benefits available to veterans: VA Disability Benefits.
According to the Veterans Administration Website, VA Benefits are defined as follows:
Disability compensation is a monthly tax-free benefit paid to Veterans who are at least 10% disabled because of injuries or diseases that were incurred in or aggravated during active duty, active duty for training, or inactive duty training. A disability can apply to physical conditions, such as a chronic knee condition, as well as a mental health conditions, such as post-traumatic stress disorder (PTSD).
These benefits can provide a wonderful benefits to veterans who have faithfully served our country and been disabled in some way. However, in the divorce context, there are quite a few misunderstandings about such benefits.
First, VA Benefits are considered the Separate Property of the retired servicemember. In states like Texas, which operate on a Community Property system, all income that is gained by either spouse during the marriage is presumed to be community property (and thus divisible by the Court in divorce proceedings). Thus, in many cases, the non-servicemember spouse think s that VA Benefits will be divisible between the parties. However, in the case of VA Disability Benefits, federal law clearly states that such benefits overcome the community property presumption, and should therefore be treated as the sole Separate Property of the servicemember. This means that the court has no authority to award the non-servicemember spouse any portion of the servicemembers VA Disability Benefits.
However, this does not mean that VA Disability Benefits are irrelevant in the context of a divorce. While these benefits cannot be divided by the court, they are considered when determining child support and spousal support. Thus, when the court looks at the retired servicemember’s income in order to determine the correct amount that the servicemember should pay in child support or spousal support, the court can consider VA Disability Benefits to be part of the income of the servicemember.
Because of these nuances, it is important to have a lawyer who understand military benefits who can help guide you through these particular issues. With that in mind, in our next blog post, we’ll look at some of the other nuances regarding military benefits in divorce.
If you have questions about this issue or any other legal issue, please give us a call at 214-236-2712.