Can VA Disability Compensation Be Used to Calculate Child Support or Income?

By Rob Jennings J.D.

In addition to child custody, separating couples with children must figure out how to handle child support. While the law on child support varies from state to state, courts generally calculate child support according to their state's guidelines. Child support guidelines typically take both parties' incomes into account. For purposes of calculating child support, income usually includes disability benefits from Veterans Affairs. Although the law typically protects VA benefits from garnishment, this doesn't always apply to child support.

Purpose of VA Benefits

Veterans' disability benefits are compensation for the veteran's impaired earning capacity and are intended to "provide reasonable and adequate compensation for disabled veterans and their families." They are not supposed to be for the sole support of the veteran, but can be counted in child support calculations to provide for the veteran's dependents as well. If the veteran wasn't disabled, he would be earning an income upon which the court would base child support; since disability benefits replace that income, child support can be based upon it.

Asset in Divorce

VA disability is not considered an asset in a divorce. The Uniformed Services Former Spouses’ Protection Act exempts VA disability payments from being divided during a divorce. It is not an asset that a judge can divide as marital or community property. This remains true even if the veteran served and was disabled during the marriage. This treatment of VA disability benefits is different from that of military retirement benefits, which can be a marital asset subject to division by a family court.

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Calculating Income

In general, all sources of income must be considered by a court in determining child support under a state's guidelines. VA benefits can count when a court calculates a veteran's income for child support purposes. However, VA disability comes with a graduated benefit schedule, which increases the veteran's payment amount the more dependents he has.

Taxes

Although VA benefits are tax-free, they are still counted as income. Other military payments, which are tax-free but are generally counted in determining support include the basic allowance for housing and the basic allowance for subsistence. Pay and allowances in general are exempt from taxation when the service member is in a combat zone, yet they are still subject to consideration in calculating child support. Since these payments are tax-free, the entire amount is considered. Depending upon the jurisdiction, the tax-free nature of these payments may provide grounds for a court to deviate upward from the guidelines.

Garnishment

There are times when the custodial parent can seek to have the VA benefits of the noncustodial parent garnished if that parent does not pay or falls behind with his support obligation. Garnishment of VA disability benefits typically depends on the veteran's military retirement pay status. For example, benefits can only be garnished if the individual who is receiving those benefits has waived military retired pay to obtain the VA payments.

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Disability in a Military Divorce
 

References

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