Disabled Veterans & Child Support in California

By Teo Spengler

Veterans injured in the service of their country are afforded financial assistance and protection by the federal government. This includes monthly disability payments to compensate for lost current and future income. The payments are protected from garnishment by most creditors, but California courts include disability amounts as income in determining a veteran's child support obligations.

Veterans injured in the service of their country are afforded financial assistance and protection by the federal government. This includes monthly disability payments to compensate for lost current and future income. The payments are protected from garnishment by most creditors, but California courts include disability amounts as income in determining a veteran's child support obligations.

Disability Payments in a Divorce

Disabled veterans going through divorce may be concerned about losing a significant part of their federal benefits to their spouses and children. A divorce court cannot divide the benefits as marital property since this is specifically forbidden under the Uniformed Services Former Spouses’ Protection Act. However, many states, including California, consider disability payments when calculating family support obligations.

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Anti-Attachment Clause

Federal law specifies that disability payments are "exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure." Some claimed this language prevented disability amounts from being considered by a divorce court. The matter was resolved by the U.S. Supreme Court in the landmark case of Rose vs. Rose, where the Court ruled that veterans' benefits "can and should" be considered as income when a divorce court determines family support obligations. Essentially, the Court stated that federal protections are intended to aid not just the veteran but also his family.

Application in California

In California, each parent has the obligation to support his family. The law assumes that the custodial parent contributes support, but the noncustodial parent's share is determined under child support guidelines unless exceptions apply. The guidelines take into account all revenue earned by the spouses, including veterans' disability benefits. A couple may agree in writing on a support amount different than that provided by the guidelines, subject to court approval.

Garnishing Veterans Benefits

Garnishment is a manner of debt collection in which the court instructs an employer or agency making payments to an individual to retain a part of the amount to pay directly to a creditor. Federal law permits the garnishment of disability payments to meet family support obligations to the extent that the veteran waived military retirement pay to receive the benefits. Only the part of the disability paid in lieu of retirement can be attached. Before garnishment can occur, the ex-spouse must file a request for apportionment with the Veterans Administration asking it to assign a certain portion of the benefits to the spouse or a minor child. California courts permit the garnishment of veterans benefits for child support and spousal support to the maximum extent allowed under federal law.

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Child Support & Social Security in California

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Divorce & Veterans Disability Pension

When couples consider divorce, one of the first questions that usually arises is who will get what. Couples are often confused about such matters as pensions, disability pay, Social Security benefits, and other forms of income which may have accrued during the marriage but will continue to be paid after the divorce is final. When it comes to veterans disability pay, some aspects of what happens during divorce are crystal clear nationwide. Others, however, vary from state to state.

Can Social Security Disability Be Attached In a Divorce?

Federal law protects Social Security disability benefits from creditors by providing that such benefits are not subject to levy or attachment. Since federal law preempts state law, it follows that state courts cannot allow disability benefits to be attached for most debts. However, this does not mean that disability payments will not be impacted in any way by your divorce.

Can a Bankruptcy Trustee Take My Social Security Disability Back Pay?

When you file a petition for bankruptcy, you are asking for court-ordered protection from creditors. A court-appointed trustee will take any assets the law does not exempt from seizure. These assets, which can include personal property, vehicles, cash and a portion of your wages, are taken to satisfy your outstanding debts. If you have received a lump-sum benefit from Social Security, it may be exempt from seizure, depending on how you handle the money.

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