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. 11 comments

U.S. Supreme CourtDisabled 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.



11 responses to “Supreme Court May Review Treatment Of VA Disability Pay In Support Cases”

  1. 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.

  2. 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.

  3. Sailor67 says:

    Anything new on this matter????

  4. 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.

  5. 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.

  6. 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/

  7. Mr. Barclay and Shove-

    I will ad-hock as to Cpl. Shove’s question first and in part, this is paramount as to how Mr. Barclay’s case came to light.

    I also happen to be a resident of Oregon, for Peter you have a nation of veterans pulling for you, much appreciation and continued success!

    In order for folks to comprehend my “logic” I must explain how the “courts” work. I was stationed in Va. and attended my advanced training there, when I was young. However, I do not know the political nature of the courts. As for Oregon, it is the most politically polarized state in the nation, literally speaking. Everything West of the Cascade Mtn. range is extremely liberal. For instance our State Supreme Court has seven ELECTED justices and two of them are openly gay. No other State Supreme Court in the nation can lay claim to that!

    What does that have to do with veteran’s disability and child support or alimony? Everything of course, because all family law cases start in circuit courts, the same courts that, more often than not, follow the political ideology of the higher court.

    So, as to Cpl. Shoves correct assessment you must consider each case differently. You may want to spend ten’s of thousands and take your case to the highest court possible or do nothing. If you do nothing you better know how your local courts will respond. For example, your ex-wife’s attorney might take you to court for contempt, the judge will find you in willful contempt, place you on probation and order you to pay court and attorney fee’s. Do this a few times and you are paying spousal support not to mention the liens the judge will slap on you. Succinctly, unless you are a resident of Arizona or have unlimited funds, forget trying to force a “state” court to comply. Veteran’s disability is a cash cow and due to the economy the state’s will do anything to get their hands on the funds. Yes, a portion of your child support and alimony goes toward the operation of state courts.

    In Peters case he is also correct- sorry to those ex-wives whom insist on listening to liberal family law attorney’s who have no comprehension of federal “benefits” or statutes.

    Peter, I am honored that your case originates in Oregon, however, I wish you had moved to a more conservative state like Arizona before your filing, but I don’t if that would have made a difference anyway. I don’t know if you are arguing Pro-Se or if you have an attorney, but due to the economic and political climate I will hesitate as to say what I believe will happen.

    I have know attorneys in Oregon who do not comprehend the outcome Mansell or Rose. The courts outright refuse to acknowledge those cases accordingly. Amazing! I’m sure you included in your brief, the underlying detriment of giving a service members disability to his or her ex. It weakens our defense posture in that if the younger population realize that 80% of military marriages fail, then there is a good chance they will loose their disability AND retirement funds to their ex’s either before or after their military commitment is up. This is succinctly mentioned in the both Mansell and Rose I believe. With the hostilities in the Middle East, we ought to get together and start an informative national campaign. I sure as —- decided upon federal military service versus civilian occupation due to the fact I did not want to work for a corporation for 30 years only to be fired a week prior to my retirement thus loosing my retirement benefits. I bet the federal government and courts would “step-up” and enforce the federal statutes if a few veterans decided to “inform” high-school seniors of their impending doom.

    Matthew Cerekas
    1 Lt. Inf. / 3rd ACR

  8. I just found and read the Oregonian article penned by Mike Francis, 09 May 2012. I must comment on this article in order for all those involved, to better understand why military veteran’s (men and women) feel and are entitled to feel, the way they do.

    I will bet that Ms. Kristen Sager-Kottre is a by-product of Berkley. Her personal views and comments mirror the liberal dribble found throughout Oregon courtrooms.

    What doesn’t make sense is her comment, she literally stated that all veteran’s DO NOT want to support their children. It never occurred to Ms. K-S-K that due to our economy they joined the military to provide for their family in the first place!

    The children in this case are over 18 years of age and adults. However, instead of saying why shouldn’t a divorced man have to support his ex-wife, she makes it sound as thought there are six kids under the age of ten.

    There are two succinct reasons why veterans everywhere are “angry and bitter” at having their disability given away to able-bodied ex’s. In addition to the obvious, disability payments and VA health care exists in order to protect and relieve city, county, and state agencies from the burden of care and financial responsibility for veterans.

    Secondly, and most importantly, VA disability is NOT mandated by congress. In layman’s terms, disability payments have not been signed into law by congress and can be cancelled at any time. No sums of money are set aside and guaranteed in our annual budget as is education and DOD expenditures. For this reason and this reason alone, the federal anti-attachment clauses that were meant to protect VA disability exist. I am going to LMAO when our deficit gets so large, that our President has no choice but to cancel all or a portion of VA disability payments. Where then will all the liberals go to find someone to support them?

    You don’t think I know what I’m talking about, right? Well, lets examine Social Security. A program that is backed and partially funded by congressional oversight. Also a program that wage earners pay into via taxes. Because SSDI benefits are paid into by the wage earner, they can be counted as income and garnished- you paid into the program, unlike VA disability. Likewise, if they garnish or you allocate a sum of money from your SSDI benefit, those amounts MUST be counted, dollar-for-dollar as credit toward child support or arrears or both. SSI is a governmental welfare program and those monies cannot be garnished.

    Ms. K-S-K then states that if there is no court order, the ex spouse can simply file for an apportionment to get what ever amount they feel they deserve. Wrong, again, sorry. To get an apportionment you have to go to a “VA” court, which is a federal court. The only monies you are likely to receive is the portion of disability the veteran receives for having a child or children. At a 100% disability rating, that comes to a little more than $100 per month for one child. Not the $900 a month the circuit court said you have to pay. So, that is great, go for the appropriation.

    Finally, lets examine the Oregon Health Plan shall we. The OHP is a low-income state welfare program. Many state’s have a program such as this; intended for wage earning tax payers to support young, mentally deficient, single- girls who got themselves pregnant. I say “themselves” because you are ultimately responsible for yourself- are you not?

    Where are all the men in this state? I do not hear them complaining about the fact that they have to pay much higher than national averages for child support. I do not hear them saying “why do I have to support some 16 year-old girl’s kid.” Why, when I filed for my States Modification through the DCS did my ex-wife NOT have to include any money or benefits she receives from the Oregon Health Plan?

    Hum… . Perhaps the above difference is why so many veteran’s are whining and angry.

  9. William Heino Sr. says:

    If, and when the question is a disabled veteran’s VA disability compensation as alimony/support, something to consider first.
    =
    The “separation of powers” doctrine is completely ignored by Oregon and most state court judges, acting like doctors, holding themselves as qualified, as a provider of health care, policy making outside their jurisdiction. Substituting their judgment for the judgment of VA doctors and medical professionals awarding as alimony a disabled veteran’s VA disability compensation. To allow what has been happening, was this the intent of Congress?
    =
    Constitution of Oregon
    ARTICLE III DISTRIBUTION OF POWERS
    Section 1. Separation of powers. “The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.
    =
    If the United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, ruled, “As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it,” then, Oregon courts are in no legal position to do so. Despite the law, it continues.
    =
    “It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law.” See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”
    =
    14th Amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any State deprive any person of life, liberty, or property, with due process of law, ..”
    =
    William Heino Sr.

  10. Brenda Black says:

    You veterans need to stop whining. The Supreme Court supersedes any other court in the country. They have the final say. I am married to a 100% medically disabled vet and I am disabled myself. My husband has been having cyber sex with a Russian lady, proposed to her and is trying to bring her over here. In the meantime, he purchased jewelry for her with our home mortgage money, allowing our home to go into foreclosure and has ruined my credit. I owned my own home before I married him with a house full of furniture and now I am homeless. He told me he was going to put a ‘bullet’ thru my head, tried 2 other times to kill me by throwing me out of the truck on the highway in NM. He took my debit card, tried to take my water bottle and my cell phone. Luckily, I called 911 and the ‘law’ advised him to straighten up. Later after I left him due to his ‘behavior’, I found 86 oxycodone pills in my pill bottle that he had purchased illegally and was planning on OD ing me in order to secure all of my personal property and the assets of the marriage for himself. I am fortunate to be alive and this animal started trying to kick me out of my home when I became disabled and was unable to ‘support’ him financially. He could not ‘practice’ his activities so easily now, since I was no longer working 12 hour night shifts and he resented it. He denied me intimacy by yelling and screaming at me in order to push me away and he was sleeping in the guest room with 2 9MM guns and a bowie knife. Do you think that since I get half of what he gets that I am entitled to some maintenance, since I will be loosing my secondary medical benefits? Since I no longer can afford a home even on my SSDI check, but may qualify for a USDA 502 home if i had additional income? I helped him to get his VA disability, filed all the papers for him and worked on all the appeals for him. He would not have gotten it if it weren’t for me. He is a RX Drug addict, thanks to the VA taking Dilaudid which is 10 times stronger than Morphine for a meager lumbar diskectomy while I have a Cervical Fusion. There is NO justification for the narcotics he is on. The VA likes to hook veterans on narcotics so that they don’t have to treat them for their mental illness in an inpatient facility. It is cheaper to hook them on pain meds rather than test them for mental illness and stabilize them while in inpatient care. This way the veteran is a SLAVE to the MD and won’t dare complain about the MD because they want their drugs and the VA MDs know this. I am a retired RN, disabled and I know what I am talking about. So take what I am saying, think about it and let me know what you think about my particular situation. Thank you for reading the ‘OTHER SIDE OF THE STORY”. God Bless you, the USA and thank you for your service, Vets. I love you all. My father was 100% disabled, retired from the Army and I have a soft spot for veterans, just not the one that I am married to anymore…& now you see why. In addition to this he was trying to ‘brainwash’ me into thinking I was ‘crazy’ by hiding my personal belongings, telling me I misplaced them, and then when I was looking for them, told me that it was “MY MEMORY”, would retrieve the hidden property, and told me that he found it, and reinforce again that it was ‘my memory’. This went on for 2 years before I realized what he was doing. Cruel manipulation, mental cruelty and very harmful mental abuse to a spouse that prior to these incidents adored him, so tell me what you think? I think I need to go before congress so the VA will be accountable for hooking our vets on pain killers, personally.

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