Spousal maintenance, VA Disability

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Latest post 05-22-2006 3:01 PM by Fxston. 4 replies.
  • 05-21-2006 8:57 PM

    Spousal maintenance, VA Disability

    I live in Arizona. My husband is divorcing me. He receives VA disability, Soc. Security disability and a pension from his former employer. Can his VA disability be counted as income in an effort to receive spousal maintenance from him. He receives nearly $5000.00 a month from these 3 sources of income. My income is about $700.00 a month. This was a 20-year marriage and he is refusing to help pay the mortgage payment now. So I am about to lose my house. Is there any hope that I can get spousal maintenance or is the VA disability untouchable to me?
  • 05-22-2006 12:06 PM In reply to

    re: Spousal maintenance, VA Disability

    All sources of income are taken into consideration when determining spousal support.

    I'm not sure where you got the notion that spousal support would be an iffy proposition given the disparity between your incomes and the length of the marriage.

    You need to hire a divorce attorney ASAP to file an emergency motion for support pending the divorce.
  • 05-22-2006 2:22 PM In reply to

    re: Spousal maintenance, VA Disability

    Spouse's attorney said VA disability cannot be counted as income in determining spousal maintenance. My attorney does not seem to have knowledge in that area and I was trying to do his leg work for him. Thanks for the information. Any other advice you can recommend would be appreciated. Probably need to get a new attorney?
  • 05-22-2006 3:01 PM In reply to

    re: Spousal maintenance, VA Disability

    Yeah, if your attorney doesn't know (or cannot, gasp!, research the issue on his-her own), yes, it's time to get a new attorney. It may not be *attachable* or divisible as property (like the pension) (e.g., you may not be able to garnish it), but I don't know anywhere where it wouldn't be taken into account when determining how much support should be awarded.

  • 05-26-2006 2:29 AM In reply to

    Note [#=#] re: Spousal maintenance, VA Disability

    I'm going throught the same thing but on the other side. As my advocate has explained it to me, VA disability is indivisible for the purposes of alimony or calculating total payment. It is not considered retirement pay. "USFSPA denies authority to state courts to treat disability payments as property when military retirement payments have been waived to receive such disability amounts. Id. at 594-95, 109 SCt at 2032, 104 LEd2d at 689. "This was one of those rare instances where congress has directly and specifically legislated in the area of domestic relations." The USFSPA grants states the "authority to treat disposable retired pay as commuity property; they have not been granted the authority to treat total retired pay [which includes disability pay] as community property." Id. at 589. 109 SCt at 2029. 104 LEd2d at 685.

    Judges of the South Dakota Supreme court in Higgensen v Higgensen stated: "We realize that reading the statute literally may inflict economic harm on many former spouses. But we decline to misread the statute in order to reach a sympathetic result when such a reading requires us to do violence to the plain language of the statute and to ignore much of the legislative history. Congress chose the language that requires us to decide as we do, and congress is free to change it."

    In Holmes V Holmes judges found that the source of payments need not come from disability and can be satisfied through other assets. Also some courts have stated that payments be based on the total gross annuity prior to deductions for disability. This however has been regularly overturned on appeal.

    Confused yet? Me too. Unless you had some agreement prior to divorce that stipulated division of gross annuity regardless of source VA disability can't be touched. I have no idea about SSDI as I do not collect that. What I have found though through research and talking to many people in the loop, it really bilis down to what the individual judge feels like that day, and if he does awrd compensation based on VA disability be prepared for an appeal. Sorry to bring news you probably don't want to hear, but this is just the wya I have found it to be.
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