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.
About Benjamin Carafiol
Ben Carafiol is a family law attorney in the Fredericksburg office of Livesay & Myers, P.C. 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.
8 Responses to “Supreme Court May Review Treatment Of VA Disability Pay In Support Cases”
I have 9/24 marked on my calendar. That’s a big matter for a lot of children and (usually) mom’s. I will wait to see what Mr. Carafiol has to say after the ruling.
For the information of ALL, V.A. Disability IS NOT INCOME !!! Since it is NOT income, therefore, it cannot be garnished. This question was asked of S.S.A. in Baltimore, Md. Regional Legal Office. There is NOTHING saying a veterans disability monies are considered INCOME.
O.K. folks, take a deep breath and allow me to set this record straight. The Circuit court judge in my case ordered me to pay $933.00 a month for my 3 year-old son. I was/am 100% total & permanently disabled. As such, I receive VA DISABILITY without retirement pay. The VA shredded the judges garnishment order as it should have. The confusion rests in the difference between VA disability and VA retirement or remuneration pay. If a former service member DID NOT retire (usually 20 years of active duty) and is being paid, it is for DISABILITY. If “he” retired or (read carefully) transferred a portion of “his” retirement into VA disability to avoid paying taxes, then ONLY the portion that he transferred is subject to child/spousal support. Most arm-chair lawyers use the term VA “BENEFITS” to include all monies veterans receive. DO NOT use the term “benefits” unless you are referring to free fishing licenses or park fees. Those are “benefits”, disability is not.
Sailor67 says: Anything new on this matter????
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Benjamin Carafiol says: @Sailor67 – please see the update above, just posted.
Peter Barclay says: Please note, that when the US Supreme Court denies a writ for petition they are simply saying there are too many other cases. Right now they are debating over Gay Marriage and Obama Care. These issues affect millions of people and goes to show how easy it is for veterans and soldiers to play a second seat and why some refer to us as second class citizens. If you are interested in understanding this issue fully or open for a debate on the issue please let me know. I will tell you the legal language is very clear on this issue.
Major points on this issue are understanding soldiers and civilians are not legally the same. Soldiers do not have the same legal balance. Soldiers do not have rights such as the bill of rights. If you actually take the time to read them they actually exclude soldiers and protect civilians from soldiers. Once you understand this you can see civilians have 1600 public assistance programs unavailable to veterans and veterans only have 20. One view on this is veterans don’t have enough services and another is each of the veteran benefits like VA Compensation are a combination of programs. VA Compensation is not the same as something like Social Security Disability (SSD). SSD is based on income. VA compensation is means tested and more akin to a combination of food stamps, welfare and HUD.
Another important point is to look at the case of Rose v Rose. First of all, in both this case and the Mansell case they excluded the VA compensation for “Spousal Support”. The Rose case was about child support because when you get divorced you are only legally removing a spouse and not children from the veteran’s family. The veteran’s payment is only reduced for the spouse and not for the children.
The biggest thing to understand about that case is it was a very important case because it came just after the Child Support Enforcement Act. Just like with the controversy over Obama Care, the states were very upset about the federal government telling the states they were required to have child support enforcement agencies and that those agencies would report to a federal agency called the Administration of Children and Families (ACF).
In the case of Rose v Rose, it was the political equivalent of the States punching the Federal Government in the nose. When children are living separate from a veteran the VA is suppose to divide the benefits and send the child’s portion to the guardian. They were not doing their job. So while the federal government was telling the states to do child support their own VA wasn’t doing it.
It’s important to read the case and see where they talk about how the US Congress will respond to the rulings of the US Supreme Court. They did it in two previous cases over railroad and military retirement. The Rose case was no different except in magnitude. In those cases they simply added a little family law to the federal law. In response to the Rose case they actually fired the VA. In 1987 it was the Veteran’s Administration. Because of that case in 1988, they completely rewrote Title 38 for veterans and created the US Dept of Veterans Affair’s in 1989. Since then they have been doing their job and currently pay on over 30,000 cases of apportionment.
Peter Barclay says: BTW, Matt Cerekas, I appreciate your comment. People like to rename VA Compensation as disability or as a benefit. It is niether of those. SSI is awarded to civilians because of a disability but it is also NOT disability or used in calculation of support payments because it too is not based on your work history.
If you join the military you come home in one of three ways. You might be lucky and come home safe. That’s awesome. However, you might come home dead. For this a sodlier is given a burial. If you come home injured they give you compensation. Niether of these are a benefit! And compensation is not disability.
Michael Shove says: Veterans comp vs. Alimony
Title 38……..Section 5301…….US Code….. 2010
forbids divorce lawyers and judges (in this case; State of Virginia) from using
veteran’s service connected disability as income to determine alimony.
No Federal Agency prosecutes for violations and there are no fines.
So a Federal Law with no teeth. Un-enforceable
Anyone know different??
How do you force a state to comply?
Can you site a case?
Michael Robert Shove
Corporal of Marines 1966-69
“Bravo” 1st Bn., 3rd Marines 08/67 http://www.onethreemarines.com/
4th CAG, CAP “PAPPA 2″ 4-2-2 09/68 http://www.cap-assoc.org/
I have 9/24 marked on my calendar. That’s a big matter for a lot of children and (usually) mom’s. I will wait to see what Mr. Carafiol has to say after the ruling.
For the information of ALL, V.A. Disability IS NOT INCOME !!! Since it is NOT income, therefore, it cannot be garnished. This question was asked of S.S.A. in Baltimore, Md. Regional Legal Office. There is NOTHING saying a veterans disability monies are considered INCOME.
O.K. folks, take a deep breath and allow me to set this record straight. The Circuit court judge in my case ordered me to pay $933.00 a month for my 3 year-old son. I was/am 100% total & permanently disabled. As such, I receive VA DISABILITY without retirement pay. The VA shredded the judges garnishment order as it should have. The confusion rests in the difference between VA disability and VA retirement or remuneration pay. If a former service member DID NOT retire (usually 20 years of active duty) and is being paid, it is for DISABILITY. If “he” retired or (read carefully) transferred a portion of “his” retirement into VA disability to avoid paying taxes, then ONLY the portion that he transferred is subject to child/spousal support. Most arm-chair lawyers use the term VA “BENEFITS” to include all monies veterans receive. DO NOT use the term “benefits” unless you are referring to free fishing licenses or park fees. Those are “benefits”, disability is not.
Anything new on this matter????
@Sailor67 – please see the update above, just posted.
Please note, that when the US Supreme Court denies a writ for petition they are simply saying there are too many other cases. Right now they are debating over Gay Marriage and Obama Care. These issues affect millions of people and goes to show how easy it is for veterans and soldiers to play a second seat and why some refer to us as second class citizens. If you are interested in understanding this issue fully or open for a debate on the issue please let me know. I will tell you the legal language is very clear on this issue.
Major points on this issue are understanding soldiers and civilians are not legally the same. Soldiers do not have the same legal balance. Soldiers do not have rights such as the bill of rights. If you actually take the time to read them they actually exclude soldiers and protect civilians from soldiers. Once you understand this you can see civilians have 1600 public assistance programs unavailable to veterans and veterans only have 20. One view on this is veterans don’t have enough services and another is each of the veteran benefits like VA Compensation are a combination of programs. VA Compensation is not the same as something like Social Security Disability (SSD). SSD is based on income. VA compensation is means tested and more akin to a combination of food stamps, welfare and HUD.
Another important point is to look at the case of Rose v Rose. First of all, in both this case and the Mansell case they excluded the VA compensation for “Spousal Support”. The Rose case was about child support because when you get divorced you are only legally removing a spouse and not children from the veteran’s family. The veteran’s payment is only reduced for the spouse and not for the children.
The biggest thing to understand about that case is it was a very important case because it came just after the Child Support Enforcement Act. Just like with the controversy over Obama Care, the states were very upset about the federal government telling the states they were required to have child support enforcement agencies and that those agencies would report to a federal agency called the Administration of Children and Families (ACF).
In the case of Rose v Rose, it was the political equivalent of the States punching the Federal Government in the nose. When children are living separate from a veteran the VA is suppose to divide the benefits and send the child’s portion to the guardian. They were not doing their job. So while the federal government was telling the states to do child support their own VA wasn’t doing it.
It’s important to read the case and see where they talk about how the US Congress will respond to the rulings of the US Supreme Court. They did it in two previous cases over railroad and military retirement. The Rose case was no different except in magnitude. In those cases they simply added a little family law to the federal law. In response to the Rose case they actually fired the VA. In 1987 it was the Veteran’s Administration. Because of that case in 1988, they completely rewrote Title 38 for veterans and created the US Dept of Veterans Affair’s in 1989. Since then they have been doing their job and currently pay on over 30,000 cases of apportionment.
BTW, Matt Cerekas, I appreciate your comment. People like to rename VA Compensation as disability or as a benefit. It is niether of those. SSI is awarded to civilians because of a disability but it is also NOT disability or used in calculation of support payments because it too is not based on your work history.
If you join the military you come home in one of three ways. You might be lucky and come home safe. That’s awesome. However, you might come home dead. For this a sodlier is given a burial. If you come home injured they give you compensation. Niether of these are a benefit! And compensation is not disability.
Veterans comp vs. Alimony
Title 38……..Section 5301…….US Code….. 2010
forbids divorce lawyers and judges (in this case; State of Virginia) from using
veteran’s service connected disability as income to determine alimony.
No Federal Agency prosecutes for violations and there are no fines.
So a Federal Law with no teeth. Un-enforceable
Anyone know different??
How do you force a state to comply?
Can you site a case?
Michael Robert Shove
Corporal of Marines 1966-69
“Bravo” 1st Bn., 3rd Marines 08/67 http://www.onethreemarines.com/
4th CAG, CAP “PAPPA 2″ 4-2-2 09/68 http://www.cap-assoc.org/