V.a. Payments and Family Support
| Publication year | 2012 |
Fall 2012 #3. V.A. Payments And Family Support
VOLUME 27 , NUMBER 4, Fall 2012
There is a lot of confusion among family law attorneys, and practitioners in general, about VA disability compensation payments. Since Maine has one of the highest rates of veterans in the country, it is important for practitioners to be familiar with veteran benefits. The questions and responses below will help to clear the muddy waters.
Q. Are VA benefits subject to levy, seizure or attachment?
A. In general, the answer is no. Under 38 U.S.C. §5301X1), benefits paid by the Department of Veterans Affairs (VA) are not subject to levy, seizure or attachment. "However," adds Steve Shewmaker, a Georgia lawyer who is also an Army Reserve JAG lieutenant colonel, "the general rule is that they are available for consideration by the court in deciding matters of family support. Levy, seizure or attachment refers to collection of debts; the courts interpreting this have consistently stated that this does not mean the duty of support for a family."
Q. Do the cases on "family support" include alimony as an exception to 38 U.S.C. §5301(a)(1)?
A. Yes. Alimony (also known as spousal support or maintenance) is one of the exceptions. A useful example would be a 1994 Iowa case involving an appeal from an alimony decision. The husband's main source of income was a VA disability check of $1,548 per month. It was based on a disability rating of 100%. In that case, In re Marriage of Anderson, 522 N.W.2d 99, 101-102 (Iowa App. 1994), the state Court of Appeals recognized this "family support exception" to 38 U.S.C. §5301(a)(1):
The issue raised by the appellant has been answered by the United States Supreme Court in the case of Rose v. Rose, 481 U.S. 619, 107 S. Ct. 2029, 95 L. Ed. 2d 599 (1987). The Rose case involved nonpayment of child support as opposed to nonpayment of alimony. However, both are viewed as familial support by the United States Supreme Court in Rose. 481 U.S. at 631-32, 107 S. Ct. at 2037, 95 L. Ed. 2d at 611. The Rose case involved a disabled veteran whose sole means of support was his V.A. checks. The state court held him in contempt for failure to pay child support. The U.S. Supreme Court held a state court has jurisdiction to hold a disabled veteran in contempt for failing to pay child support, even if the veteran's only means of satisfying his obligation is to use veteran's benefits received as compensation for a service connected disability. 481 U.S. at 619, 107 S. Ct. at 2030, 95 L. Ed. 2d at 604. The Court held:
481 U.S. at 636, 107 S. Ct. at 2039, 95 L. Ed. 2d at 614Neither the Veteran's Benefits provisions of Title 38 nor the garnishment provisions of the Child Support Enforcement Act of Title 42 indicate unequivocally that a veteran's disability benefits are provided solely for that veteran's support. We hold, therefore, that as enacted these federal statues were not in conflict with and thus did not preempt § 36-820 (the Tennessee child support statute). Nor did the Circuit Court's efforts to enforce its order of child support by holding appellant in contempt transgress the congressional intent behind the federal statutes.
Q. Are there cases in other states which also say this?
A. Yes. In a 1984 Louisiana Court of Appeals case, the trial court found that the husband, Mr. Collins, had virtually no source of income other than his VA benefits. The husband argued that VA benefits are exempt from awards of temporary alimony ("alimony pendente lite") under the anti-attachment wording in Title 38. The Court of Appeals stated:
Mr. Collins was obliged to, and did support Mrs. Collins out of his Veterans' benefits during the time they lived together. His obligation to support her out of whatever income and assets are available to him continues until their marriage is dissolved by divorce.
An award of alimony pendente lite is not an "attachment, levy, or seizure" as contemplated in 38 U.S.C.A. § 3101(a) [the previous number for this section of Title 38]. . ..
Collins v. Collins, 458 So.2d 1008 (La App. 1984)The provisions of 38 U.S.C.A. § 3101(a) do not apply to awards of alimony pendente lite. The duty to pay alimony pendente lite does not arise as the result of the judicial process. An award of alimony pendente lite is the legal enforcement of a marital duty rather than a process for the collection of a debt. If no other income is available for the purpose, Mr. Collins must use his Veterans' benefits for the support of Mrs. Collins when she "has not a sufficient income for maintenance pending suit". La.C.C. Art. 148. The trial judge erred in discontinuing the previous award of alimony pendente lite.
In a 1990 Maryland case, the Court of Special Appeals said:
Neither [the McCarty nor the Mansell case] purported even to suggest that... disability benefits actually received by a veteran cannot be counted as income to the veteran for purposes of determining his or her ability to pay alimony.
The law generally is that such benefits may be considered as a resource for purposes of setting the amount of alimony 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) protecting those benefits from the claims of creditors. . .. We find those cases persuasive and therefore hold that the VA disability benefits received by Dr...
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