What can she take?

ketennison

Registered Member
#1
My husbands ex wife keeps taking him to court and upping his child support payments (the judge even counted against him that he was deployed last year and could not get them) He will be medically retired soon, what can child support and her take , about 70% of his check is now going to her, they are now including bah in the equation. she now thinks she can factor in va benefits and every penny he will get from the medical retirement
 

scoutCC

PEB Forum Veteran
Registered Member
#2
She is correct, VA benefits and military pension are both able to be used to calculate child support and/or alimony, it all depends on state rules. The rules only get more specific if she wants to direct DFAS to pay directly.
 

ReWilder86

PEB Forum Veteran
Registered Member
#3
She is correct, VA benefits and military pension are both able to be used to calculate child support and/or alimony, it all depends on state rules. The rules only get more specific if she wants to direct DFAS to pay directly.
Scout can you site a source? Because from my understanding, VA benefits and MEDICAL retirement cannot considered in alimony payment. The information I read might have been wrong. Can you please let me know where you got your info from? Thanks!
 

scoutCC

PEB Forum Veteran
Registered Member
#4
http://www.nclamp.gov/l_va%20disability.pdf - provides some good overview.

Basically USFSPA (10 USC 1408) says military retired pay can be considered marital property, and under that rule, for many states, becomes automatically divisible. Chapter 61 is generally exempt for this consideration (A.4.d).

Rose v Rose is a supreme court case that says the section of title 38 that prevents VA benefits from being directed away from you does not apply when it comes to family support. Alimony is considered support, not a division of property.

Now most states are turning away from alimony and generally just look at dividing marital property evenly. Some states shield disability pay when considering income when deciding alimony.
 

antknee77

PEB Forum Veteran
Registered Member
#6
In other words, disability compensation cannot be factored in to determine amount of alimony or child support?
 

scoutCC

PEB Forum Veteran
Registered Member
#7
No, it can be.

It cannot be considered marital property, only normal retirement can. The question of if you owe support and equitable division of property are different questions.
 

jsheeh9427

PEB Forum Veteran
#8
I'm going through a divorce in Virginia right now and this is how it has panned out for me:

They took my retired pay, disability, and regular pay check into consideration for Alimony, Support and Child Support.
But the key here is educate yourself and your soon to be ex if you can.

This is what you need to consider when retired pay is concerned:
Retired pay and SBP are two different things when it comes to divorce. The ex spouse can ask for what they are entitled to as far as your retired pay goes not to exceed 50% and they need to ask for SBP as a separate request. Lot of ex spouse don't know that.

Here's my situation and I am fortunate my ex and I are better friends now than ever.
If she wanted my retirement she was only entitled to 48% because we were only married 18 years of the 20 year career.
She can not ask for more than that. And they have to treat it like property and do an appraisal of your retirement. Once the appraisal is complete it takes 90 days for DFAS to start paying. And no she does not receive back pay. And it is taxed. Now they don't use your whole retirement when it comes to figuring our what will be divided. They use your disposable income.

We opted for spousal support in lieu of retirement. Here are our reasons why
I receive 2124 for retirement, before taxes, SBP, and TriCare and a child support payment from a previous relationship.
So at the end of the day and after all that my take home is 1300 (My disposable income) Of which she receives 650 (50%) Non taxable to me and taxable to her Now when my child support payment is done next year, she will receive half of that. Where if we did the 48% she would of received less that 650 and none of the child support payment.

Now your VA disability compensation is specifically exempt from being divided in a divorce or treated as marital or community property as per the Uniformed Services Former Spouses’ Protection Act. However, your disability payment can, and probably will, be considered when a family court contemplates an award of alimony to the spouse – even when you must use the money you receives from his VA disability payment to pay the alimony.

Hope I may have answered some of your questions.

John

http://www.dfas.mil/garnishment/usfspa/faqs.html
http://gloverluck.com/veterans-law-...orce-alimony-and-your-va-disability-benefits/
 

USCG_proud

Registered Member
#9
I beg to differ, I live in Palm Harbor Florida and I am 90% disabled (NO RETIREMENT) 90% Service connected disability, Divorce is not finalized and the Judge ordered me to pay her $1300 of my $1800 Veterans Disability Income! I now cannot even consider paying an attorney and unable to pay the one I had even though I do not feel they did a fair job. I also get $1700 Social Security Disability but by the time I pay my rent, and other bills I am 100% broke. Car is being repossessed, and more. I did not think this could be ordered but the judge said was very clear that SHE can order what she wants and if I do not pay her I will be found in contempt! I have tried my best to find a Pro-Bono Lawyer but there is not one that is willing to touch it. She also got the paid off house, all contents and the car that is paid off. This is so one sided it is unbelievable. I caught her cheating on me and I get punished! Judge Susan Saint Cloud of the Pinellas county Florida Courts is who made this judgement. I am still part owner of the house (On Paper) but not allowed on the property, locks are changed. Is this justice?
 
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