Are Disability Benefits Received in Lieu of Retirement Pay Divisible Marital Property?

 By Jessica O’Connell GMUSL ’13, CLASV Spring 2013 Student Advisor

Military divorce cases involve a complex convergence of state and federal laws.  States vary in their interpretation and application of the federal laws governing veterans’ disability benefits and their use in divorce proceedings.  Last October, the U.S. Supreme Court declined to consider this issue, which states are sharply divided over: whether federal law bars state divorce courts from considering a veteran’s disability benefits marital property that can be divided between divorcing parties.[1]  This post outlines what you need to know as a military servicemember, veteran, or spouse before obtaining a divorce.

Under federal law, the Uniformed Former Spouses’ Protection Act (“USFSP”) authorizes state courts to divide a servicemember’s disposable retired pay in a divorce.[2]  “Disposable retirement pay” is defined as “the total monthly retired pay to which a member is entitled,” less any authorized deductions; among those authorized amounts deducted from a servicemember’s retired pay are disability benefits.[3]  The USFSP does not require any particular division of the servicemember’s military retirement, but rather authorizes states to apply their own laws regarding division of military retirement in divorce cases.[4]

Until the implementation of concurrent receipt of disability and retirement pay, when a retired servicemember (20 years or more)[5] elected to receive tax-free disability pay, he or she had to give up a similar amount of retirement pay.[6]  Although disability pay cannot be divided as part of a divorce, when a servicemember gave up retirement pay in exchange for disability pay, this reduced the amount of retirement pay a divorcing spouse could receive.[7]  For those who are receiving retirement pay, but are not eligible for concurrent receipt, disagreement often arises in cases when post-divorce the disability waiver is elected, and the former non-military spouse faces an unanticipated reduction in the amount of military retirement he or she expected to receive.

The dispute regarding whether disability pay may be considered in a divorce raises issues under 38 U.S.C. § 5301(a) which deals with veterans’ disability benefits and makes them immune from “taxation, claims of creditors, attachment, levy and seizure.”  This Section fails to address whether disability benefits are marital or personal property and whether or not they should be included as part of a veteran’s income for support purposes.  However, the Supreme Court in Rose v. Rose made it clear that the anti-attachment clause of Title 38 does not apply to court orders which require a veteran to support his or her family.[8]  The Rose Court further found that the legislative history of veterans’ disability benefits demonstrated an intent to compensate the veteran “and his family.”[9]

Most states, including Virginia, have adopted the approach that disability pay can be used towards alimony,[10] and base this reasoning on Supreme Courts’ decision in Rose v. Rose which held that the legislative history of the veterans’ disability benefit scheme demonstrates an intent to compensate the veteran “and his family.”[11]  On the other hand, a minority of states have held that veterans’ disability benefits are not divisible property and therefore are not entitled to be used in calculating support.[12]  While states are divided on whether disability benefits may be considered in awarding familial support, the USFPA makes it clear that disability payments under Title 38 of the U.S. Code are not subject to property division upon divorce.[13]

The Supreme Court has spoken to this issue in Mansell v. Mansell, a case involving a state court’s decree which divided a military retiree’s disability benefits as part of the property settlement, and not as spousal or child support.[14]  In Mansell, the Court held that federal law prohibits state courts from dividing or partitioning disability benefits as community or marital property upon divorce, and also prohibits treating waiver of military retired pay (in order to obtain VA disability benefits) as marital or community property.[15]

While the Supreme Court and Congress agreed that VA disability benefits are not subject to property division at divorce, there is no federal law, and the Supreme Court has never held, that VA benefits may not be considered as a factor in dividing other assets, namely spousal support,[16] and a number of state courts have held that such consideration is not forbidden under Mansell.[17]  Further, a majority of state courts, including Virginia, have held on similar grounds that federal law does not prevent a state court from enforcing a contractual division (such as a property settlement of disability benefits).[18]


[1] Barclay v. Barclay, 133 S. Ct. 176, 184 L. Ed. 2d 235 (2012), cert. denied.

[2] See 10 U.S.C. § 1408.

[3] 10 U.S.C. § 1408(a)(4).

[4] 10 U.S.C. § 1408.

[5] Those servicemembers retired with less than 20 years are ineligible for concurrent receipt and must waive a portion of their retirement when electing to receive tax-free disability pay.  See http://www.military.com/ContentFiles/NEW%20_Retirement_HR_1588.htm.

[6] Understanding the Division of Military Pensions in Divorce, Divorcenet.com, http://www.divorcenet.com/states/new_york/military_divorce_and_pensions (last visited April 3, 2013) (sometimes, it is dollar-for-dollar).

[7] Id.

[8] 481 U.S. 619, 634 (1987).  The Rose case involved nonpayment of child support, however the Supreme Court views both child support and spousal support together as familial support.

[9] Id.

[10] Tom Philpott, Is Counting VA Disability in Divorce Proceedings Legal?, Military.com, (May 18, 2012) http://www.military.com/features/0,15240,245321,00.html.

[11] Rose, supra note 7 at 634.

[12] See Hagen v. Hagen, 282 S.W.3d 899, 903 (Tex. 2009) (holding veterans’ benefits which are not in lieu of retirement benefits are not subject to alimony payment calculations); Youngbluth v. Youngbluth, 6 A.3d 677, 680 (Vt. 2010) (holding “at least when the original property division order states an exact percentage and contains no indemnity provision – a former spouse cannot use an enforcement proceeding to receive an increased percentage to offset the military servicemember’s subsequent application and receipt of disability benefits); see also Davis v. Davis, 777 S.W.2d 230, 232 (Ky. 1989) (holding that courts in Kentucky are prohibited from treating a retiree’s disability payments as marital property).

[13] 10 U.S.C. § 1408.

[14] 490 U.S. 581 (1989).

[15] Id. at 594-95.

[16] Several jurisdictions have held that federal law does not bar considering veterans’ disability pay as a source of income in awarding spousal maintenance, even where disability benefits may be used to make such payments.  See, e.g., Clausen v. Clausen, 831 P.2d 1257, 1263 n.9 (Alaska 1992); see also, In re Marriage of Kraft, 832 P.2d 871 (Wash. 1992); Womack v. Womack, 818 S.W.2d 958 (Ark. 1991); In re Marriage of Nevil, 809 P.2d 1122 (Colo. Ct. App. 1991); Riley v. Riley, 571 A.2d 1261 (Md. Ct. Spec. App. 1990); Lambert v. Lambert, 395 S.E.2d 207 (Va. Ct. App. 1990); Weberg v. Weberg, 463 N.W.2d 382 (Wis. Ct. App. 1990).

[17] Bottigi v. Wall, 765 N.E.2d 819 (Mass. App. Ct. 2002); In re Strong, 8 P.3d 763 (Mont. 2000); Bishop v. Bishop, 440 S.E.2d 591 (N.C. App. 1994); Vitko v. Vitko, 524 N.W.2d 102 (N.D. 1994); In re Murphy, 862 P.2d 1143 (Mont. 1993).

[18] White v. White, 568 S.E.2d 283, 285 (N.C. App. 2002) (Mansell “does not prohibit military spouses from contracting away their disability benefits”); see also, McLellan v. McLellan, 533 S.E.2d 635 (Va. 2000); Price v. Price, 480 S.E.2d 92 (Ct. App 1996).

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.  

Preparing for the Unique Challenges of a Military Divorce

By:  John Austin Timberlake, CLASV Spring 2013 Student Advisor

The prospect of filing for divorce and process itself can be difficult in any marriage, and there are many challenges that couples must face and issues that neither thought of going into it.  Military divorces have the potential to add further complications due to the unique circumstances of military life and the special regulations surrounding it.

It is important to recognize that there are differences between filing for divorce in a civilian marriage and in one in which one spouse is an active duty, reserve, or retired servicemember.  While they are generally alike and involve substantially the same process, there are some different rules that govern such things as where you can file, child and spousal support, child custody, and pension/benefit divisions.

With this in mind, there are some things that are beneficial to know and be ready for going into a military divorce.  The first and foremost among these is that you should be prepared for a long process.  In addition to mandatory separation periods, discussed further below, filing for divorce in a military marriage can be delayed by deployments and other military-related requirements.  If a spouse is still on active duty, any decrees must conform to the requirements of the SCRA.  What follows are a few pieces of advice to prepare any servicemember or military spouse for some of the issues they can expect when filing for divorce…

Know where you can and wish to file for divorce:

Part and parcel of military life can be constant changes in location.  As such, it is common for military couples to have been married in one state, live in another, and own property in yet another, be it from a previous duty station or perhaps where they intended to eventually settle.  The consequence of this is that there are often multiple states where a military spouse can file for divorce.  So long as one spouse can establish residency, there is jurisdiction to file in that state.

When making the decision where to file, it is important to take into consideration the laws of each state and how they might affect you.  Different states have different rules regarding such things as division of benefits.  Puerto Rico, for example, does not require the division of a servicemember’s benefits with his spouse upon divorce.  Failing to investigate the divorce laws of each state can have adverse consequences on one party or the other when it comes to things like division of property, child/spousal support, and child custody.

Know the mandatory separation laws in the state where you intend to file:

Every state now has some form of no-fault divorce, but most states also have a mandatory period of separation before filing for no-fault divorce.  The rules regarding this separation period differ from state to state.  As such, it is important to determine exactly when physical separation commenced, as well as what counts towards the separation period.  In Virginia, for example, the period where a spouse is on military deployment can count towards the separation period so long as there is bona fide intent by at least one of the spouses for the separation to be permanent.  There are many important things to know depending on which state you are filing in, such as the length of time separated required before filing for divorce, whether a temporary reconciliation and/or briefly resuming cohabitation resets the clock, and what impact the existence of children has on the mandatory separation period.

If a spouse is active duty military, it is important to have an understanding of their intentions regarding their future in the military:

As stated earlier, if you are a military spouse, it is important to know whether your spouse will be active duty upon the time of filing, as that can affect when certain hearings could be held or decrees made.  However, that is not the only decision by your spouse regarding their military future than impacts divorce settlements and awards.

Whether your spouse intends to complete the 20-year service time requisite for military retirement impacts separation bonuses, which need to be contemplated in any divorce settlement.  Additionally, if your spouse intends to transfer to reserve status, you must look at how that will affect his/her pay and points towards retirement.

Be prepared to contemplate division of military pensions and benefits:

A common misconception regards spouse’s rights to a servicemember’s benefits after divorce.  Military spouses are not automatically entitled to any SBP (Survivor Benefits Plan) as a beneficiary upon divorce.  As such, any provisions for division of benefits must be addressed in a marital settlement agreement.

The computation of retired pay is an issue that is highly likely to become an issue in a military divorce.  Unlike civilian divorces, where state law governs, military divorces must also follow the Uniformed Services Former Spouse’s Protection Act (USFSPA).  Unfortunately, the USFSPA does not provide a formula to determine how much a spouse should receive of his/her spouse’s military pension.  As stated earlier, different states have different rules governing the division of military pensions in divorce.  However, the USFSPA stipulates that the state where the military member resides always holds the power to divide the military pension.

References:

Rebekah Sanderlin, Military Divorce: Why Where You File Matters, http://www.military.com/spouse/relationships/military-divorce/military-divorce-where-you-file-matters.html

Marsha L. Thole, Military and Divorce, Divorce Source, http://www.divorcesource.com/ds/military/military-and-divorce-564.shtml

Divorce In Military Families – How It’s Different & What You Need To Know, Stateside Legal, http://statesidelegal.org/divorce-military-families-how-it-s-different-what-you-need-know

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.  

Taking the Stigma Away: Mental Health Treatment and its Implications for Obtaining Security Clearances

By:  Rebecca Cohen, CLASV Spring 2013 Student Advisor

As the war in Afghanistan continues into its twelve year, and forces from the Iraq War begin to draw down, a new focus has been put on the challenges that servicemembers now confront when they return home.  A major obstacle they must face relates to their mental health and emotional well-being.  Although there has recently been increased media attention devoted to the subject, a large stigma stills exists in the military community against acknowledging and seeking professional help for mental health issues, particularly for Post Traumatic Stress Disorder (PTSD).

Many are hesitant to publicly admit that they are suffering from PTSD, yet statistics show that the disorder is very common among veterans.  A report from the Department of Veteran Affairs showed that over 250,000 veterans of Operation Enduring Freedom, Operation Iraqi Freedom, and Operation New Dawn from October 1, 2001 through June 30, 2012 sought treatment for PTSD from VA centers.[1]  When one takes into consideration that many veterans suffering from PTSD have not sought treatment and are therefore unaccounted for, the number becomes staggering.  In fact, an estimated 11% to 20 % of Iraq and Afghanistan veterans suffer from PTSD.[2]

One of the major reasons veterans and servicemembers do not seek professional help for PTSD is because they worry that receiving treatment will negatively impact their career.  Often, they fear that getting the help will hinder their ability to obtain a security clearance.  In a process that is already drawn out and frequently tedious, it is understandable why one would wish to avoid the logistical and personal ramifications that may come from formally acknowledging the diagnosis.

However, the Defense Department has taken significant steps to prevent this from happening.  It is a misconception that one’s security clearance will be jeopardized because of mental health treatment.  According to data from 2009, approximately 99.98 percent of U.S. Army clearance applicants who reported psychological concerns on their Standard Form 86 received or maintained their security clearance.[3]

Furthermore, as part of the efforts to de-stigmatize mental health treatment, in 2008, Defense Secretary Robert Gates changed the disclosure requirements under Question 21 of the Standard Form 86.  Under this question, which asks about consultations with mental health professionals, one may answer “no” if it was “related to adjustments from service in military combat environments.”

Although more needs to be done to fully remove the stigma against receiving mental health treatment, it is important to know that such treatment will not interfere in someone’s chances to receive a security clearance.  PTSD is a legitimate and serious issue that interferes with a veteran and his or her family’s daily life.  Treatment of the syndrome should not and does not have be ignored for the sake of professional advancement.

There are many online resources that give information, support, and assistance to servicemembers and veterans who suffer from combat stress.  The following websites are just a few of the many:

http://www.dami.army.pentagon.mil/site/PerSec/Q21.aspx

http://www.afterdeployment.org/

http://dcoe.health.mil/Families.aspx

http://www.realwarriors.net/

 


[1] “Report on VA Facility Specific Operation Enduring Freedom (OEF), Operation Iraqi Freedom (OIF), and Operation new Dawn (OND) Veterans Coded with Potential PTSD –Revised December 2012, Office of Public Heath, Veterans Health Administration, Department of Veterans Affairs

[2] National Center for PTSD, http://www.ptsd.va.gov/public/pages/how-common-is-ptsd.asp

[3] http://www.army.mil/article/24053/financial-problems-or-ptsd-need-not-affect-security-clearance/

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.  

Veteran Suicides

By:  Linda Santiago, CLASV Spring 2013 Student Advisor

Currently, one veteran commits suicide every 80 minutes.  Some estimates state that 150,000 Vietnam Veterans have committed suicide.  This is not a new problem, but rather an enduring one.  What can be done to address this epidemic?

Authors from a recent Philly op-ed cite to statistics showing that 22 veterans take their lives every day – 70 percent over 50 years old.[1]  The actual number or rate of veteran suicides, however, is not known because no nationwide surveillance system for suicide among all veterans exists.[2]  Nonetheless, we can probably agree that any number of veteran suicides is too high.

The Philly op-ed authors explain that four factors contribute to veterans’ emotional devastation– first, war is vile, replete with death, violence, and maiming; second, veterans returning home from war feel isolated from their families and society who cannot relate to their war experiences; third, veterans are mislabeled as “mentally ill” and society assumes veterans can only be helped by drugs and therapists; and last, veterans’ suffering and isolation are worsened by taking a cocktail of prescribed drugs to treat their “mental illness.”  The authors argue that one way to help veterans is to stop mislabeling them as mentally ill and rather, integrate them back into society through community-related activities (e.g., mentoring, volunteering, sports, political advocacy, etc.).

President Barack Obama offers alternative solutions as well.  Last August he signed an Executive Order – “Improving Access to Mental Health Services for Veterans, Service Members, and Military Families.”[3]  To prevent veteran suicide, the President directed the Department of Veterans Affairs to increase the capacity of its crisis hotline by 50 percent; ensure that any veteran identifying himself/herself as being in crisis connects with a mental health professional or trained mental health worker within 24 hours or less; hire new mental health professionals; implement a national suicide prevention campaign focused on connecting veterans and service members to mental health services; and review existing mental health and substance abuse prevention programs to identify those programs which are the most effective.

The palliative actions set forth in the Executive Order, however, fail to address the underlying factors raised by the Philly op-ed authors, which lead to high numbers of veteran suicides.  Identification of disorders (e.g., Posttraumatic Stress Disorder; Traumatic Brain Injury; Clinical Depression; Alcohol or Drug Addiction; Bipolar Disorder; Schizophrenia, etc.) that are associated with an elevated suicide risk and correct diagnosis are crucial to identifying the correct treatment for prevention of veteran suicides.[4]

While a clinical approach is needed, it must coincide with stepped up education of mental health professionals and the raising of public awareness to this dire situation.  War has a very traumatic impact on human consciousness and the last thing a veteran needs is to be incorrectly labeled as mentally ill.  The American populace needs to become more involved so as to remove any social stigma associated with the symptoms, emotions, and challenges a veteran experiences.  Veterans need to feel safe and be reassured that what they are going through is normal and fixable.  After all, it is our own Government’s doing in placing veterans in harm’s way.  Our Government is indebted to these servicemen and women to make them feel whole again.   Much can be done at the local, state, and Federal levels to ensure that these veterans have housing, economic security, employment opportunities, and a support network to remind them that we are in this together and that they are not alone.

 

 

 


[1] Paula J. Caplan and David Sutherland, Unseen Wounds, Philly Inquirer, Feb. 11, 2013, http://articles.philly.com/2013-02-11/news/37022089_1_department-of-veterans-affairs-million-veterans-war.

[2] Erin Bagalman, Suicide Prevention Efforts of the Veterans Health Administration, Congressional Research Service, Jan. 10, 2013, https://www.fas.org/sgp/crs/misc/R42340.pdf.

[4] Shaili Jain, MD, Preventing Veteran Suicide, PLOS Journals, Sept. 27, 2012, http://blogs.plos.org/mindthebrain/2012/09/27/preventing-veteran-suicide/.

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.  

Veteran Hiring Incentives On the Rise

By Krista Goelz, CLASV Student Spring 2013 Advisor

In 2012, on average, 9.9% of veterans were unemployed, which is down from an all time high in 2011 of 12.1%. However, it is still much higher than the national unemployment average and equals approximately 205,000 veterans of the wars in Iraq and Afghanistan who are currently without work.[1] But there is good news: recently passed tax incentives are compelling companies to hire more veterans than ever before. The VOW to Hire Heroes Act of 2011 provides tax incentives for employers to hire and train veterans who are unemployed or have service-connected disabilities.[2]

In February, Wal-Mart pledged to hire 100,000 recently discharged veterans in the next five years.[3] Wal-Mart has stated that they will hire any veteran, who was honorably discharged, within twelve months of leaving active duty service. To find more information on Wal-Mart’s program, please visit: http://walmartcareerswithamission.com.

However, Wal-Mart is not the only employer who has been actively trying to recruit veterans to its workforce.   This month, Disney announced plans to hire another 1,000 veterans over the next two years, after hiring 1,300 this past year.[4]

Additionally, HirePurpose, an organization and staffing agency that matches veterans with civilian career opportunities, has listed the top five companies currently hiring veterans. In order, they are: (1) Booz Allen Hamilton (http://www.boozallen.com/consulting/better-our-world/supporting-veterans); (2) Science Applications International Corporation (SAIC) (http://jobs.saic.com/job/Mclean-Operation-MVP-(Military-Veteran-Program)-Job-VA-22101/1727544/) ; (3) Northrop Grumman (http://www.northropgrumman.com/Careers/MilitaryVeterans/Pages/default.aspx) ; (4) USAA (https://www.usaa.apply2jobs.com/ProfExt/military_recruiting.html) ; and (5)  L-3 Communications (http://www.l-3com.com/careers/transitioning-military.html).[5] Please visit their websites for more information on each company’s hiring initiatives.

Another beneficial website for veterans seeking employment is http://www.hireheroesusa.org. HireHeroes is a non-profit dedicated to finding employment opportunities for veterans, at no cost to them. They not only assist with matching veterans with an employer, they also offer resume reviews and revisions, teach interviewing skills, and help the veteran identify any VA benefits to which they may be entitled.

For veterans seeking federal employment, http://www.fedshirevets.gov is a website run by the U.S. Office of Personnel Management, meant to enforce President Barack Obama’s veterans hiring initiative. The website gives useful information on finding federal employment and how to take advantage of veteran’s preference. All federal job openings are posted on https://www.usajobs.gov. It is important to note that veterans are eligible for certain federal hiring preferences. The federal government assigns points to the most qualified candidates for a position. If you are a veteran, you may be eligible for an additional 5-10 points on your federal employment application.

You are eligible for a 5 point preference if you meet any of the following conditions: (1) served 180 or more consecutive days on active duty, any part of which occurred during the period beginning September 11, 2001 and ending on a future date prescribed by Presidential proclamation or law as the last date of Operation Iraqi Freedom; or (2) served on active duty between August 2, 1990 and January 2, 1992; or (3) served on active duty 180 or more consecutive days, any part of which occurred after January 31, 1955 and before October 15, 1976; or (4) you served on active duty in a war, campaign or expedition for which a campaign badge has been authorized or between April 28, 1952 and July 1, 1955.

You are 10-point preference eligible if you served at any time, and you: (1) have a service connected disability; or (2) received a Purple Heart.[6]

Finally, for employers, hiring veterans is an all around smart business move. Not only due to the recent tax breaks given to businesses that hire veterans, but also because of the unique skills veterans bring to their workforce. Veterans have a proven track record of loyalty, they are team players, they respond to directions well, and have increased retention rates and greater performance levels than the civilian workforce.[7]

 

 

 


[1] USA Today, Veteran Jobless Rate Falls but Remains High, http://www.usatoday.com/story/news/nation/2013/01/06/vets-jobless-rate-drops/1812667/ (January 6, 2013).

 

[2] United State Dep’t of Veterans Affairs, VOW to Hire Heroes Act of 2011, http://benefits.va.gov/vow/foremployers.htm (last accessed February 18, 2013).

 

[3] USA Today, Wal-Mart Pledges to Hire 100,000 Veterans, http://www.usatoday.com/story/news/nation/2013/01/15/wal-mart-hire-100000-veterans/1835397/ (January 15, 2013).

[5] HirePurpose, Top 5 Companies Hiring Veterans, http://hirepurpo.se/blog/top-5-companies-hiring-veterans/ (February 14, 2013).

[6] FedsHireVets.gov, Veterans Preference, http://www.fedshirevets.gov/job/vetpref/index.aspx (last accessed February 19, 2013).

[7] PR Web, Why Hiring Veterans is a Smart Business Move, http://www.equities.com/news/headline-story?dt=2013-01-20&val=945859&cat=business (January 20, 2013).

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.