Supreme Court May Review Treatment Of VA Disability Pay In Support Cases


Posted on August 5th, 2012, by Benjamin Carafiol in Family Law, Military Divorce. 12 comments

Disabled veteran Peter Barclay has petitioned the U.S. Supreme Court to consider whether a veteran’s disability pay should be included as income for spousal support purposes. The Oregon District Court that entered the divorce between Barclay and his wife in 2010 ordered Barclay to pay $1,000 per month in spousal support based on his income received from his VA benefits and Social Security Disability Insurance. Barclay appealed this matter through Oregon’s state courts, and the Oregon Supreme Court upheld the trial court’s decision.

The case raises issues under Title 38 of the United States Code, which deals with Veterans’ benefits. Section 5301 of Title 38 makes VA disability benefits immune “from taxation, claims of creditors, attachment, levy and seizure.” What this Section does not clearly state, however, is whether disability benefits are also immune from inclusion in a veteran’s income for support purposes.

Most states, including Virginia, do include VA benefits when calculating child and spousal support awards. The U.S. Supreme Court found in its 1987 decision in Rose vs. Rose that VA disability benefits are intended to compensate both the veteran “and his family,” and Virginia adopted that view in Holmes v. Holmes the next year. Virginia broadly defines “income” when it comes to calculating child and spousal support. In spousal support cases, Virginia Code § 20-107.1 directs courts to consider “[t]he obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature.” The Code is even more explicit when addressing child support, as Virginia Code § 20-108.2 defines income for child support purposes as including all income from all sources and specifically lists veterans’ benefits as a potential source of income in determining child support.

The U.S. Supreme Court is set to review the Barclay case on September 24, 2012, when the Justices will meet to discuss the issues raised in the case and to determine whether the case should be placed on the Court’s calendar. The outcome of this review conference is expected in early October of this year.

A decision to place this matter on the Court’s schedule does not necessarily mean the Court intends to rule in favor of Mr. Barclay; the Court may simply wish to instruct all states to uniformly follow the approach used in Virginia and the majority of other states. Should the Court agree with Mr. Barclay that VA benefits should not be included as income for child and spousal support purposes, however, it would mean a significant change in how these issues are decided, and Virginia would need to amend and update the Virginia Code accordingly.

Update – On October 1, 2012, the Supreme Court denied the petition to have the Court review the Barclay case on its merits. For Virginia, this means the established law remains unchanged: disability payments may be considered a source of income for support purposes.

The military divorce lawyers at Livesay & Myers routinely handle support cases involving military retired pay and military disability pay. We represent clients in Fredericksburg, Spotsylvania, Stafford, Manassas, Woodbridge, Alexandria, Arlington, Fairfax, and throughout Northern Virginia. Contact us to schedule a consultation today.

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About 

Ben Carafiol is a senior family lawyer in the Fredericksburg office of Livesay & Myers. He has years of experience representing clients in the courts of Fredericksburg, Stafford, Spotsylvania and surrounding areas. Knowledgeable in all areas of family law, he is particularly experienced with issues of military and government retirement.



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