Can My Wife Get My VA Disability If We Divorce in Virginia?

Can My Wife Get My VA Disability If We Divorce in Virginia?

Veterans going through a divorce may be concerned about losing a portion of their disability pay to child support, alimony payments, and/or property division. 

For any veteran who’s in the process of getting a divorce, hiring a knowledgeable and experienced military divorce lawyer is crucial. They will need help understanding what’s at stake, and to make sure assets are fairly divided during proceedings.

Here’s how disability benefits are handled in a VA divorce. 

VA Disability Benefits are Exempt from Marital Property Division

Veterans who suffer from service-related injuries are entitled to disability. These benefits are governed by federal laws such as the Uniformed Services Former Spouses’ Protection (USFSPA). 

Under the USFSPA, VA disability payments are exempt from marital property division. Unlike military retirement benefits that may be divided by a family court, VA disability pay is not considered a marital or community asset during divorce proceedings.

VA disability compensation covers disabilities or injuries that were sustained by the veteran while they were on active duty. They also cover physical and mental injuries that worsened due to active service. 

These injuries don’t need to happen during active combat—for instance, the veteran is still entitled to VA disability benefits if they sustained the injuries during a routine training session. 

VA Disability Benefits May Be Garnished for Child Support

Although VA disability benefits are not subject to marital property division, they may be considered as part of the veteran’s income when the court determines child support payments. The reasoning here is that VA disability benefits are considered compensation for the veterans’s diminished earning capacity. The benefits serve as a replacement for the income that the veteran would be earning if they weren’t disabled. 

Furthermore, because VA disability benefits are not subjected to tax cuts, the full amount is taken into account by the court when determining child support payments. 

The amount of child support payments established by the court may then be garnished or seized from the veteran’s VA disability pay if they fail to meet their responsibilities. 

An important note to remember, however, is that VA disability benefits may only be garnished if the veteran opted for this type of compensation in lieu of military retired pay. Otherwise, they can’t be garnished at all.

VA Disability Benefits May Be Garnished for Alimony

VA disability may also be garnished for alimony payments. The amount that can be reasonably garnished depends on several factors, including:

  • The former spouse’s income
  • The veteran’s other income sources
  • Any special needs that the former spouse may have

In most cases, between 20 to 50 percent of the benefits may be garnished. Any higher than this may result in undue financial hardship to the veteran. 

Apportionment of VA Disability Benefits

Apportionment happens when the VA assigns a specified portion of the veteran’s disability benefits to one of their family members. Alimony and child support payment will only be garnished after the former spouse applies to receive their apportioned share. 

After the application for apportionment has been filed, the VA decides whether they’ll grant the claim. If it’s awarded, the share will then be paid monthly to the family member, thus reducing the amount that the veteran gets.

Find the Right Divorce Lawyer in Virginia

There’s a lot at stake when you’re facing a divorce that involves VA disability benefits. Instead of dealing with things on your own, and potentially making mistakes that can impact your finances for a long time, hire an experienced Virginia divorce lawyer.

Our team will help you deal with the complexities of the process and protect your rights. Contact us today at (757) 656-1000 to schedule a consultation.