Retired Pay vs Disability Pay During Military Divorce

A military divorce can be slightly more complex than one involving civilians because of certain questions that only military personnel have to debate. One of the issues that has the most potential for confusion or disagreement is that of disability pay. The disabled servicemember tends to think disability pay is untouchable, but the real answer is that in a divorce, it can still play a role. A knowledgeable attorney can help answer your questions about the process.

An Unpleasant Surprise

It is the truth that under current U.S. law, military disability pay is not divisible as marital property. VA disability benefits belong solely to the injured person – which means, in an equitable distribution state like Florida, that it is not divisible between the spouses like other income might be. Being an ‘equitable distribution’ state for purposes of divorce means that the court will divide marital property (assets and debts) between the spouses in the fairest (most ‘equitable’) way possible.

While disability benefits are explicitly not divisible as assets, the main point where many get confused is that in many states (Florida included), disability benefits still count as income for purposes of child and spousal support. In other words, a court may not unilaterally award a chunk of one’s disability benefits to their ex-spouse as an asset, but it can require that a person whose only income is disability benefits use that money to pay child or spousal support.

What To Do?

In general, many military retirees waive a part of their retired pay, if necessary, in order to be eligible for VA disability payments at a later point. However, when someone chooses to waive a percentage of that retired pay, it comes out earlier than the percentage of retired pay that might be owed to a former spouse. This means there is less for a former spouse to request in terms of child support or alimony.

If a veteran has no other income besides VA disability payments, but still has a child support or spousal support obligation, their former spouse may be able to file for apportionment, which is essentially asking the Veterans Administration to divide the veteran’s benefits up among the people or entities who are owed support. The Supreme Court has previously ruled that a veteran’s benefits are to support the veteran’s family, not just the individual, and so support obligations must be upheld.

Call A Hollywood, FL Military Divorce Attorney

Many military divorces become complex, often in ways the spouses did not plan for, and disability pay is one of the biggest issues that comes up in these proceedings. A Hollywood, FL family attorney from The Law Offices Of Steven A. Mason, P.A. can help to answer your questions about the process. Call our office today at (954) 963-5900 to speak to an attorney.