Question:
After a bitter divorce, lawyers on both sides agreed that my VA Disability should be treated as marital property and now my ex gets 50% of my disability. Nebraska judge agreed. Could the USFSPA be any more unfair and is this becoming a trend to rape our veterans of their benefits?Jim's reply:
I've been through a "bitter divorce" myself so I understand and empathize. It's very frustrating when we feel like the deck is stacked against us. The fact is that nobody who has ever faced the family court is happy with the result...everyone loses.
However, it appears you're operating with some misconceptions about how the system works. I've always felt that it's important to get the facts straight when we're dealing with a seemingly adversarial system that doesn't pay us much attention. The family court is just such a system.
In a nutshell, the family court has a single primary goal...that is the welfare of any children that are dependents in the marriage. The court doesn't care so much about who said what, the court operates with a formula that is very much alike state to state. In this "no-fault" mode of operation, the court determines the financial obligations of each party using a financial statement that is sworn or attested to by each individual. If there are children involved, the amount of child support and the custody of the children is determined and then any alimony that may be due is also stipulated to. Most family courts use a similar financial statement that requires that you will list all income as well as all debts for a determined period of time that will show the financial history of each party individually and as a married couple.
When the court asks for all income, they almost always mean any income you have, including disability income, inheritances, Lotto winnings, real estate sales and anything else that generates any sort of income. Once the income for each party is determined to be an accurate detailing of their financial circumstances, the court will record stipulations about obligations in the divorce decree.
The court can't divide up your disability payment and nobody can garnish or otherwise seize any part of a VA disability payment. However, the court isn't garnishing the payment, only using it to determine the total income and then obligation that exists for the veteran. It's worth noting that the VA can and often does apportion the payment if you fall into arrears with child support or alimony payments. The obligee can file a form to VA stating that the veteran is behind in court ordered support and if the VA determines that to be true, they can send a portion of the disability payment directly to the spouse.
Finally...you mention the Uniformed Services Former Spouse Protection Act (USFSPA) and your ex getting 50% of your disability. The USFSPA is usually thought of as the decision process to determine obligations for retired service members and how those retirement benefits will be assigned going forward. VA disability pay is only addressed as a part of the retired benefits package by USFSPA so I'm not exactly sure of how your obligations were determined. In any case, if your attorney agreed with the findings of the court, it's best to pay close attention and follow those orders. Contempt of court is never a positive path to follow.