Disabled Veteran petitions Supreme Court over benefits in divorce

Posted by Debi Teter

US Supreme CourtIn a petition filed with the Supreme Court earlier this month, a disabled veteran in Oregon is seeking a reversal of a lower court decision to count his VA disability benefits as communal property in his divorce.

At issue is whether states violate federal law when they allow divorce courts to include disability pay in calculating spousal support. 

In the divorce of Peter Barclay, an Air Force veteran, and his wife of nearly 20 years, an Oregon district court judge included considered the value of Barclay’s VA disability payments when awarding spousal pay of $1,000 per month. Barclay’s only income is from VA benefits and Social Security Disability Insurance, a tax-free amounnt of slightly more than $4,400 per month.

Barclay suffers from PTSD from his role as a first responder during the 1995 bombing of the federal building in Oklahoma City. His PTSD made him unemployable and eligible to draw VA compensation at the 100% disabled rate.

Barclay and his attorney, Michael D.J. Eisenberg, have argued that Title 38 US Code, Section 5301(a), which makes VA disability benefits immune “from taxation, claims of creditors, attachment, levy and seizure” would also bar the inclusion of disability pay in spousal support calculations.

Eisenberg is arguing that disability pay is meant to compensate the veteran for loss of income due to a service-connected medical condition. If the veteran is married, VA compensation tables set payments higher. But that extra amount, given in recognition of the spouse’s sacrifice in living with a disabled individual, stops when the veteran gets a divorce. That should mean the spouse has no direct claim on the compensation anymore. Eisenberg stated, “It’s not like the veteran’s disability caused the spouse a military-related disability.” 

Barclay’s former spouse claims she has diabilities of her own, but Barclay and Eisenberg argue that she should receive help from state or federal programs, including Social Security Disability Insurance, rather than from VA disabiliyt benefits.

Oregon and most other states disagree, based on a 1987 Supreme Court decision which said the legislative history of the VA disability benefits shows that payments are meant to compensate both the veteran and his/her family. Further, the 1982 Uniformed Services Former Spouse Protection Act (USFSPA) allows courts to distribute “disposable” military retired pay as marital property or as alimony or child support. 

Barclay’s petition notes that the USFSPA excludes disability compensation from the definition of “net disposable income.” The petition also references a 1989 Supreme Court decision in favor of a retiree who sought to reduce his spousal support when he won a disability award from the VA. When the retiree began drawing VA benefits, it lowered his military retirement being shared with the former spouse. Barclay is a veteran but not a retiree, but still claims the protections of disability pay should extend to all veterans.

Barclay’s petition also points to three states which offer protections similar to the federal law. In Arizona, a recently passed law shields veterans’ disability benefits from alimony calculations. Texas and Vermont have laws whcih proclude VA disability benefits from being included in the division of property or in alimony calculations.

Eisenberg argues that it is time the Supreme Court addresses the states’ various interpretations and clarifies the law in favor of Barclay and other disabled veterans. 

At least four justices will have to agree to review the case. We will follow the petition and report back if the Court decides to hear arguments.

 

Which side of the argument do you agree with? Should disability compensation be solely for the veteran affected or for the spouse/family who also lived with the consequences of the disability? Let us know in the comments.

 

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7 responses to “Disabled Veteran petitions Supreme Court over benefits in divorce”

  1. Nicole says:

    I to am in the middle of a divorce and have to put in my VA disability for income in the state of Missouri. I agree that it should not be included in divorce. We veteranz were the ones that went to fight for our country not our spouses. We were the ones who put our lives on the line and seperated from our families for not only training but deployment.

  2. William Heino Sr. says:

    In the past two years disabled Oregon veteran Peter Barclay went to both the Oregon Supreme Court and the United States Supreme Court. Failing both, asking, “..whether states violate federal law when they allow divorce courts to count a veteran’s disability compensation in calculating spousal support?” As you will discover, as you read on, the law is quite clear as to a veteran’s rights and a state court judge’s improper roll in denying protections that are guaranteed.  

    This veteran had failed in his quest for something that Oregon legislators are now proposing, permanent alimony reform! However, the proposed legislation completely ignores, and does not include ALIMONY REFORM for disabled veterans‘. This is what disabled veteran Peter Barclay was seeking from the Oregon Supreme Court, as well as United States Supreme Court.  
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    States such as Massachusetts, West Virginia, New Jersey legislators, as well as other states, due to the changing realities of family life, either proposed or passed that ‘permanent current alimony’ obligations be eliminated in alimony reform legislation.  
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    Looking at these many State legislative proposals, and those ratified into law, one can only wonder, with all this legislative thinking going on, what happened? The subject of the disabled veteran’s VA disability compensation used as alimony, when is this alimony reform suppose to happen? This is something disabled veterans’ have tried to do for a very, very long time.  
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    It is time now to propose similar alimony reform legislation for disabled veterans. Disabled veteran’s have the same issue. However, the solution involves an illegality issue imposed on disabled veteran‘s as much as it is reform. Why now? For the reasons that follow, according to law. 

    INFORMATIONAL COMMENT STATE COURT JUDGES  

    38 USC 5301 Nonassignability and exempt status of benefits. “Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law,.. a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.  

    “It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”  

    “Due process”. How is it, that state court judges can arbitrarily and capriciously award as alimony, with the mere wave of a hand, waive away a portion of a veteran’s VA disability rated compensation? Moneys in the form of disability compensation, the disability rights of a veteran, whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same. State court judges, are in reality, playing doctor, without medical license or knowledge .. a practice forbidden, providing penalties by law , and border on medical negligence. All without any input, or approval from the Veterans Administration. Overstepping those whose authority it belongs, the dedicated VA medical professionals, in the practice of medicine, re-evaluation, and rehabilitation of the veteran. While at the same time violating federal law, 38 USC 5301, 42 USC 1408, and the 14th Amendment.  
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    Ninth Circuit Says Congress, Not Courts, Have Say Over VA Health Care  
    VETERANS FOR COMMON SENSE v. SHINSEKI December 13, 2011  
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    Continually, State court judges disregard the law, as reduction in disability compensation cannot be “reduced unless an improvement in the veteran’s disability is shown to have occurred.” USC 1155 Authority for schedule for rating disabilities.  
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    How are judges allowed the discretion to award as alimony disability compensation based on ‘statutory’ awards? Which are not predicated directly on the average reduction in earning capacity, but primarily upon consideration of noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of the disability. The purpose of the statutory award for loss or loss of use of a creative organ is to account for psychological factors.  

    “Clear and substantial” major damage to federal interests occurs when state court judges make lasting decisions, that seriously impact disabled veterans’ rated compensation and complicate Veterans Administration goals, and responsibilities. Upsetting, by overruling VA medical compensation decisions, which involve many hours of work that VA medical professionals have invested in the medical care, control, follow-up, and rehabilitation of disabled veterans. All this happens with VA complicity, when a state court, arbitrarily is allowed to take away a veterans VA disability compensation in third party alimony awards in violation of….. 38 USC 5301. 42 USC § 407 – Assignment of benefits, carries similar language.  

    Where is it written, the VA authority, when a state judge can arbitrarily overrule the VA, the VA medical doctors and other medical professionals’ that determine a veterans’ medical rating compensation? His future now without the compensation that was by law assured? Tax payer monies mandated by Congress purposely, as veterans service compensation for injuries received, life altering as they are, now being diverted purposely by state courts to healthy third parties in many cases, in a determined and engaging violation of the law. To allow what has been happening, was it the intent of Congress that state court judges substitute their judgment for the judgment of VA doctors and medical professionals? I don’t think so!  

    Where is it written? Will there be the same eagerness of state legislators to extend this proposal and eliminate veterans disability compensation from alimony? Legislators, do the right thing now and fight for disabled veterans.  
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  3. William Heino Sr. says:

    Something the U.S. Supreme Court will not intervene in, or fight over.

    State court violation Separation of Powers DISABLED VETERANS

    State court violations of veterans’ VA disability compensation in disregard of State law, as well the Constitution of the United States have been forwarded (6/23/14), to all nine Justices of the United States Supreme Court, who in 2012 denied a petition on this issue by disabled Air Force veteran Peter Barclay. Justices now have stored in their court clerk’s file, my questions of law I find concerning these violations. Namely, “Separation of powers, Due Process, The Commerce Clause, Supremacy Clause,” as well, various veterans’ laws, the property protections of veterans benefits. The point of this mailing? This is now not something the Justices have not been made aware of. What they do with this information, if anything, will tell you a great deal. The Justices have been advised of the following.

    In State court cases involving divorce, our disabled veteran’s concerns are over rulings violating both state and federal law. Decades of continuing costly litigation, incurred in pursuing 14th Amendment property rights of veterans VA disability compensation being awarded to third parties in violation of federal law 38 USC 5301, 10 U.S.C. § 1408. This unlawful activity continues in all but a few state courts that do recognize it‘s federal exempt status. Disabled veterans need to know if it’s true that the “… essential purpose of the due process clause is to prevent the government from acting arbitrarily.”

    Divorce is, and can be complicated process. However, keeping in mind, that in each case during the court’s initial property distribution rulings of alimony/support, before any conceivable consideration, in determining VA disability compensation as an award of alimony/support, first and foremost, the court’s duty to the veteran, enforcement of the protections secured by the Constitution. “State sovereignty is not a proper basis on which to rest jurisdiction. Instead the focus is on whether the defendant’s due process rights are infringed by the court’s assertion of jurisdiction.” Civil Procedure 4th Ed. West group.

    “It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law.” See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”

    Oregon resident, Peter James Barclay, a disabled Air Force veteran, May 2 2012, filed with the United States Supreme Court a Petition for a writ of certiorari.

    ARGUMENT
    I. “The Court Should Grant Review to Determine Whether State Courts Are Erring as a Matter of Law By Preempting Federal Law with State Law Federal Law, by Considering VA Disability Pay Divisible Under State Community or Equitable Distribution Laws.”

    II. “This Court Should Grant Review to Resolve the States’ Various Interpretations and Applications of Federal Law Governing Veterans’ Disability Benefits and State Communal and Equitable Property Laws in Favor of One Binding Precedent.”

    On Oct 1 2012 Petition was DENIED.

    This decision fell on all disabled veterans when Peter Barclay was denied his Constitutional rights by Oregon’s State and Supreme court and refusal of the United States Supreme Court to consider his petition. All the while interestingly, permanent alimony reform continues, and has been proposed in Oregon and, as well, legislated in several states, all without one thought of the disabled veteran.

    I take that back. Yes, one State did think about the disabled veteran. In 1983, “..the Texas Supreme Court held that …Veterans Administration disability benefits …with the clear intent of Congress that these benefits be solely for the use of the disabled veteran.” And as so, legislated and made part of Texas law. Although alimony reform had been on the legislative agenda, they turned their thoughts once again to the disabled veteran. The Texas legislature in 2013 amended the law. Section 154.062(b), Family Code. Sec. 8.055. AMOUNT OF MAINTENANCE. “(a-1) For purposes of this chapter, gross income:
    (5) all other income actually being received, including… United States Department of Veterans Affairs disability benefits ….”

    The issue is VA medical disability compensation, the property rights of the disabled veteran, in what VA medical doctors, medical professionals have determined a disabled veterans injuries should be compensated for. If, and when the question is a disabled veteran’s VA disability compensation property rights, it’s time that disabled veterans voices be heard in a matter that has long concerned them. State court judges continue to ignore the disabled veteran, and the law, i.e., 38 USC 5301, 10 USC 1408. “Separation of powers” doctrine is mandated to end this attempt by the state court to manipulate, overlook, and circumvent the law, and manage to stick it to the disabled veteran.

    It is said that no person can be deprived of life, liberty, or property, without due process of law. Forgotten long ago are the property rights of the disabled veterans. Why? It is clear the court’s have no legal right to, exercise, determine, or consider in any equitable calculation thereof, to divide federal VA disability benefits, in order to further enforce judgment arbitrarily in disregard of property rights. The “separation of powers” doctrine imposes the assumption that the state court, in attacking the disabled veterans legal right to claim as exempt, his or her VA disability compensation, further requires subject matter jurisdiction, which address the court’s constitutional or statutory power to entertain a particular controversy. State court’s have the sworn duty and responsibility to enforce federal law. The court’s continued attempt to override VA administered rehabilitative medical services determinations, of disability compensation is not within the courts purview, legal right or jurisdiction to invade.

    Disabled veteran’s, and the “separation of powers” doctrine, both overlooked, ignored, for years, by most state court judges. Policy making outside their jurisdiction of constitutional boundaries in re-evaluating and considering long held established VA protocols, of a disabled veteran‘s VA disability compensation for purposes other than rehabilitation and health of the veteran. Substituting their judgment for the judgment of VA doctors and medical professionals. Violating the property rights of a disabled veteran’s earned VA disability compensation “..once they are delivered to the veteran..,” the blatant disregard of 38 USC 5301, “and shall not be liable to ..…or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.“ and the 14th Amendment, to further degrade property rights of the disabled veteran, runs afoul of the “separation of powers” doctrine. Injurious, and an abuse of power to allow what is happening, was this the intent of Congress?

    A disabled veteran’s plea to the judge, “I have a very severe serious back injury, I do need all of my VA disability compensation.” The judge will, of course reply, “Are you a doctor?” The practice of medicine is a privilege and a calling, and that it combines both art and science. And yet, in these non-life threatening health issues, acting as a provider of health care, state court judges independently take on the serious role of playing doctor, prescribe without medical license or knowledge VA medical compensation issues. A practice forbidden, providing penalties by law, and border on medical negligence in maintaining it’s own state health practice standards.

    Despite a ruling by the United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, in refusing to exceed their jurisdiction over service-related disability compensation, state courts judges, yes… purposely overlook and violate this canon of law.

    A State’s navigable streams are regulated as commerce throughout it’s travel, to protect against pollution, and it’s effect to protect it’s health all along it’s travels. This is no different from a veterans VA disability compensation benefit, navigating it’s way across many states, and just as well recognized as commerce, regulated. State courts failing the constitutional standards for establishing a state priority over the Commerce Clause, Article 1, Section 8, have shown no State interest to protect the health and well being, or the property interests of a disabled veteran.

    Realizing laws protecting VA disability compensation as exempt, state courts, therefore are unable, in any legal standing, to secure garnishment of veteran’s VA disability compensation. The court not satisfied, in a final move, will now consider, from any source, an equitable calculation of veteran’s resources, to include…. the very same disability compensation the court has acknowledged as exempt in determining court awarded support. Suggesting the use of a veteran’s disability compensation, or go to jail! As has happened. The mere mention, innuendo, or thought of VA disability compensation to satisfy indemnity obligations as a equitable consideration in any form, thought or calculation of VA disability compensation, suggests interference, in matters identified as exempt, are beyond the State courts jurisdiction, under “separation of powers” doctrine. The court has the responsibility to recognize “property” as a “due process’ right and the states obligation to uphold the State Constitution’s “separation of powers” doctrine.

    A state court judge not wanting to violate federal law realizing the exempt status of VA disability compensation, so orders the veteran, that support payments… shall be made from his or her VA disability compensation. In many instances the only monies available, asking (coerced) the veteran to break federal law 38 USC 5301, one that the court will refused to violate. “Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law,.. and shall not be liable to ..levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

    To illustrate, an ultimatum of disabled veterans’ experiences. As California Vietnam disabled veteran explained to me, “So the court is playing the ‘contempt of court’ game…I am unfortunately too afraid to go to jail for any reason so I resentfully and reluctantly pay the balance.” (Piner v Piner Calif.)

    The Supremacy Clause of the Constitution… “The laws of the United States… shall be the supreme law of the land…anything in the constitutions or laws of any State to the contrary notwithstanding. This means of course, that any federal law—even a regulation of a federal agency—trumps any conflicting state law.”

    The federal agency’s Veterans Administration Secretary knowing of these concerns remains oblivious to what is their responsibility of care to veterans is, and remains unconcerned as to exactly what their administrative duty is to protect VA disability benefits from those who freely encroach on those constitutional responsibilities that clearly belong to the Veterans Administration. I find no duty of the Secretary to surrender control of VA disability benefits so freely to the States. The issue of disabled veterans right to property is about the law, and not setting a precedent.

    As a veterans advocate, and a Korean era veteran, I am neither disabled or in any divorce action. The reality of law from the disabled veteran’s view.

    William Heino Sr.

  4. Douglas Charnock, Jr. says:

    100% DAV with TBI. Divorce came. In the process, with children emancipated and no spousal support, the circuit court still took my disability award, home, and most all assets as I could not defend myself. Court conspired and refused to admit exhibits and witnesses…no due process to be heard on any Motions filed. Filed federal law suit. See Fourth Circuit 14-1888 & Writ of Mandamus 14-2100.
    you may contact me if you can help stop this brand new precedent set by Virginia State Court.

    • douglas charnock says:

      On June 19, 2015, Supreme Court of U.S. docketed petition 14-1494 for response from Virginia. Veterans compensation ASSIGNED away in community property. (Not apportioned-ordered- or go to jail!) no spousal support – children emancipated. 100% disabled veteran afforded no trial to argue – DUE PROCESS DENIED, lost it all to discretion by 2nd Circuit Judge Edward W. Hanson, Jr. of Virginia Beach.

  5. William Heino Sr. says:

    Disabled veterans according to Oregon and the United States Supreme Court.

    Oregon resident, disabled Air Force veteran Peter James Barclay in protecting his VA disability compensation from a State court ordered spousal support, was denied his Constitution rights by Oregon’s State Supreme Court. And further, the refusal of the United States Supreme Court to consider his May 2, 2012 petition, requesting, “The Court Should Grant Review to Determine Whether State Courts Are Erring as a Matter of Law By Preempting Federal Law with State Law Federal Law, by Considering VA Disability Pay Divisible Under State Community or Equitable Distribution Laws.”
    (Oct 1 2012) Petition was DENIED.

    Oregon’s statutes outline their many references in compliance with it‘s supposedly “due process” observance and adherence to federal law. Perhaps these laws pertain only to specific situations in Oregon law? Which means Oregon courts have decided “due process” means law applies to certain individual decided case law, case law that does not include disabled veterans.

    34 § 411.837¹ “Compliance with state and federal laws required”
    10 § 409.040¹ “Federal law supersedes state law.”
    26 § 279A.030¹ “Federal law prevails in case of conflict”

    Compliance to federal law would start here. 38 USC 5301 Nonassignability and exempt status of benefits, is the federal protection of the disabled veteran’s VA disability compensation. “(a)(1) shall not be assignable… shall be exempt from taxation, .. creditors, ..attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

    The Linn County Oregon Circuit Court and Oregon Supreme Court decision was upheld by the United States Supreme Court in denying Peter Barclay‘s petition, in seeking Constitutional property right protections. This only confirms that, when it comes to disabled veterans, and service-related disability compensation issues, laws do not matter, they are not applicable, and therefore offer no protection by either federal or Oregon law.

    The United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, in refusing to exceed their jurisdiction, ruled, “As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it,.. veterans seeking the prompt provision of the health care and benefits to which they are entitled by law, as judges we may not exceed our jurisdiction.” Oregon’s State court judges as well, are not in any legal position to exceed their jurisdiction.

    In cases involving VA disability compensation one has to look at a ruling by the United States Supreme Court. Mansell v. Mansell, 490 US 581, 594-95, 109 S Ct 2023, 104 L Ed 2d 675 (1989), “..concluded that, under federal law, state courts cannot divide military disability benefits as marital property in marriage dissolution proceedings.” However, as illustrated, this does not stop the United States Supreme Court, they have no problem when it comes to “service related disability compensation.”

    From the publication titled, READING LAW. The Interpretation of Legal Texts. Scalia/Garner-West. “[M}ost [Lawyers and Judges] tell a story about legal interpretation that is simply a scam…The truth is, there is no such thing as “just following the law”. Every judge, every lawyer, every interpreter always makes the law, never finds it, when reading legal text. And their personal views inescapably play a central role in the making.“

    It wasn’t disabled veteran Peter Barclay, or the thousands of other disabled veterans that received any benefit of the law, or the expense in hiring a lawyer, in pursuing their costly VA disability compensation property rights claim to court, or to any higher court!

    Unfortunately, after all court posturing and legal responses, references, making their legal point, to the detriment of all disabled veterans, missing was the federal question, “Federal courts repeatedly have declined to assert jurisdiction over divorces that presented no federal question.” See, e. g., Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930).” In Barclay v Barclay there was a federal question! A question of “clear and substantial major damage” to federal interests. Something that no court or lawyer wants to acknowledge or pursue for the obvious reasons.

    The issue is VA medical disability compensation, the property rights of the disabled veteran, in what VA medical doctors, medical professionals have determined a disabled veterans injuries should be compensated for. As evidenced, State court judges continue to ignore the disabled veteran and the law. “Separation of powers” doctrine is mandated to end this attempt by the state courts to manipulate, overlook, and circumvent the law. Law, both state and federal, as shown, that is out of reach for many disabled veterans.

    Realizing laws protecting VA disability compensation as exempt, the courts, in matters, identified as exempt, are beyond the courts jurisdiction, under a “separation of powers” doctrine. A State court has the responsibility and the obligation to uphold the State Constitution. “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

    Forgotten are the rights of the disabled veterans. The separation of powers doctrine imposes the assumption that the state court, in attacking the disabled veterans legal right to claim as exempt, requires subject matter jurisdiction over federally mandated VA disability compensation benefits. The court has the sworn duty and responsibility to enforce federal law.

    State court judges, acting like doctors, holding themselves as qualified, as a provider of VA medical health care. How are judges allowed this non-life threatening discretion? Policy making outside their jurisdiction of constitutional boundaries in re-evaluating and considering long held established VA protocols, of a disabled veteran‘s VA disability compensation for purposes other than rehabilitation and health of the veteran. Substituting their judgment, for the so called “police power” right to interfere with vested property rights to protect the health, and general well being of the disabled veteran? For that of the judgment of VA doctors and medical professionals, in securing for the veteran, his or her earned disabled veteran’s VA disability compensation. The blatant disregard of the 14th Amendment, to further degrade disability compensation property rights, “..once they are delivered to the veteran..,” and the best interests of the disabled veteran, runs afoul of the “separation of powers” doctrine and the United States Constitution.

    “It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law.” See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”

    As a veterans advocate, a Korean era veteran, I am neither disabled or in any divorce action. The reality of law from the disabled veteran’s view,… it’s criminal.

    William Heino Sr.

  6. William Heino Sr says:

    VA disability compensation consequences.

    The mention of VA disability compensation in a Massachusetts courtroom, led to dire consequences for two disabled veterans.

    Where is it written in States rights, is the Veterans Administration, the VA authority, when a state judge can “hold oneself out as qualified,” and arbitrarily overrule the VA, the VA medical doctors and other medical professionals’ that determine a veterans’ medical rating and disability compensation? Massachusetts disabled veteran Matt Schmoker’s future now without the compensation that was by law assured? Tax payer monies mandated by Congress purposely, as veterans service compensation for injuries received, life altering as they are, now being diverted purposely in state court alimony/support awards to healthy third parties in many cases, in a determined and engaging violation of the law. To allow what has been happening, was this the intent of Congress? That state court judges substitute their judgment,… for the judgment of VA doctors and medical professionals? I don’t think so!

    Veterans Affairs blind deference to “states rights“ and a VA administration “high jacked” resulting in “Clear and substantial” major damage to federal interests. State court judgments that seriously impact disabled veterans’ rated compensation and complicate Veterans Administration goals, and responsibilities. Upsetting, by overruling VA military medical compensation decisions, which involve many hours of work that VA medical professionals have invested in the medical care, control, follow-up, and rehabilitation of disabled veterans. All this happens with VA complicity, when a state court, arbitrarily is allowed to take away a veterans VA disability compensation in violation of….. 38 USC 5301. Nonassignability and exempt status of benefits.

    Vietnam era disabled veteran Matthew Schmoker joined the Marines 1/28/74. After 5 years of military service he was discharged 3/19/79 with a disability rating of 30%. Matt waived military retired disability pay in order to receive VA disability compensation. No survivor benefits elected. Matt Schmoker while serving in the Marine Corps was unmarried.

    1980 Matt Schmoker married Lorraine and then were divorced in 1983 after 3 years. Interestingly, VA disability not mentioned in court papers. Matt Schmoker remarried Lorraine March 1988. Divorced Feb.2010.

    In 2002 Schmoker’s disability rating was increased to 100%. He waived military retired pay in order to receive VA disability compensation.

    Matthew Schmoker argues that the Commonwealth of Masscuhusetts, Probate and Family Court Suffolk Division erred in application of law in ordering alimony payments based on protected federal VA disability benefits. The military classified Matt Schmoker as being medically retired from the military in1979. Permanently disabled medically retired Dec. 1983..

    Military medical retirement is intended to compensate for a military career cut short because of disability. VA disability compensation is intended to compensate for disabilities that interfere with civilian employment, and it is separate from medical military retirement pay. By law in order to get VA disability compensation you must waive entitlement to all permanent disability retired pay. Matt Schmoker’s status is non-pay military retired, VA 100% disability pay compensation. The Massachusetts court violated both State and Federal law in awarding court ordered alimony garnishment from his VA disability compensation.

    The Massachusetts Court Docket 3/31/09 #08D2013, Schmoker v Schmoker, references in ruling, the Defendants Marine Corps Disability Pension [incorrectly designated authority] and 10 USCA § 1408, Computation of Retired pay (a)(2)(b), Effective Service of Process. Citing, “The arrearage be assigned from the Defendants Marine Corps Disability pension.” But rather than clarify and explain Chapter 71 Section 1408 Computation of Retired pay, “Payment of retired or retainer pay in compliance with court orders,” the court instead wanted to refer to (b) Effective Service of Process, as the reason for the court’s ruling.

    However, what the court purposely referenced but failed to communicate or consider is the fundamental rule of law 1048 as it applies to disabled veteran Matt Schmoker. Computation of Retired pay,1408 (a)(2)( C ) explains the purpose of 1408. “…in the case of division of property, specifically provides for the payment of an amount, expressed in dollars or as a percentage of disposable retired pay, from the disposable retired pay of a member to the spouse or former spouse of that member.”

    MANSELL, v. MANSELL. No. 87-201.Decided May 30, 1989.
    “Congress enacted the Uniformed Services Former Spouses’ Protection Act (Act), 10 U.S.C. § 1408 (1982 ed. and Supp. V), which authorizes state courts to treat as community property “disposable retired or retainer pay,” § 1408(c)(1), specifically defining such pay to exclude, inter alia, any military retirement pay waived in order for the retiree to receive veterans’ disability benefits, § 1408(a)(4)(B). “

    “Held: The Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans’ disability benefits. In light of § 1408(a)(4)(B)’s limiting language as to such waived pay, the Act’s plain and precise language establishes that § 1408(c)(1) grants state courts the authority to treat only disposable retired pay, not total retired pay, as community property.”

    Matt Schmoker’s federal disability payments is clarified by Mansell v Mansell, “§ 1408(c)(1), specifically defining such pay..” and 10 USC 1408 itself, payments are not classified or considered as disposable pay. He is designated, not as retired or retainer pay status, but is classified solely VA disability compensation rated. And for these many reasons, Matt Schmoker having no disposable pay issue, therefore does not have or owe any fiduciary responsibility. Clearly, 10 USC 1048 does not apply to Matt Schmoker. Never-the-less Massachusetts court Judge Elaine Moriarty found it necessary to violate the law, her judges judicial cannons, and the personal property rights of disabled veteran Matthew Schmoker by awarding his earned VA disability compensation as alimony.

    2014 Massachusetts General Laws, TITLE III DOMESTIC RELATIONS CHAPTER 209 HUSBAND AND WIFE. . “The real and personal property of any person shall, upon marriage, remain the separate property of such person, …” The exception being, and contrary to this Massachusetts law, the personal property illegal ruling in Schmoker V. Schmoker, where the Court had disregarded Chapter 209 law, and ruled that VA military disability benefits, as a protected personal property right of this disabled veteran earned before marriage, as meaningless.

    In Schmoker v Schmoker, it’s curious, the court’s reliance then refers to citing only one, Massachusetts Supreme Judicial Court decision. Krapf v Krapf 439 Mass. 97. (4/2/03) “..under the parties’ separation agreement, the judge did not err in ordering the Husband to pay plaintiff wife the equivalent of fifty percent of the military retirement pension that the Husband would have received if he had not waived his entitlement to the same by accepting veteran’s disability benefits…” Because of Matt Schmoker’s military disabled benefit status, and lacking any marital separation agreement, any court order to calculate, or consider military disability compensation as to any equivalency is therefore not applicable.

    The Krapf ruling reference in Schmoker v. Schmoker is understood as a condition set by the court, that resulted in awarding plaintiff wife monetary relief if not for veteran Krapf accepting veteran’s disability benefits, as allowed by law. This ruling therefore was understood as a condition, that Matthew Schmoker by accepting VA disability compensation over-reached and this resulted in an unfair and impermissible ruling for Matt Schmoker, notwithstanding Federal or Massachusetts law.

    The Krapf court suggesting the avoidance of an impermissible contravention of law ruled, “…the judgment in this case does not divide the defendant’s VA disability benefits in contravention of the Mansell decision; the judgment merely enforced the defendant’s contractual obligation to his former wife, which he may satisfy from any of his resources.” The court perhaps realizing “Like other law governing the economic aspects of domestic relations, must give way to clearly conflicting federal enactments.” (Ridgway v. Ridgway, 454 U.S. 46, 55 (1981)), recognition of Federal law 38 USC 5301. And this is Matt Schmoker’s argument. Why then had Schmoker not been dealt that same court ruling in Krapf, “which he may satisfy from other resources“? The why is, Matt Schmoker had no other resources.

    Massachusetts Title III Chapter 208 Section 34. “Upon divorce…In addition to or in lieu of a judgment to pay alimony, the court may assign…military retirement benefits if qualified under and to the extent provided by federal law…” Federal law, as previously provided and noted, has qualified military retirement benefits under various conditions as exempt, 10 USC 1408, 38 USC Sec. 5301.

    Military retirements is clarified and found qualified under …. Massachusetts General Laws Section 1. “Disabled veteran”, any veteran, as defined in this section, … for which he has been retired from any branch of the armed forces and is receiving or is entitled to receive a retirement allowance, or (2) has a continuing service-incurred disability based on wartime service for which he is receiving or is entitled to receive a statutory award from the veterans administration. “

    A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.
    XI.—“Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.”

    Although alimony has ended for many in Massachusetts, due to a sweeping overhaul of alimony law, The Commonwealth of Massachusetts, AN ACT REFORMING ALIMONY IN THE COMMONWEALTH.
    (2011) Section 49. (a) “General term alimony shall terminate upon ….” However, and despite both Federal and Massachusetts law, state court judges, and legislators, as shown, do not believe Matt Schmoker or other disabled veterans, are not deserving of the law or same consideration afforded to it‘s citizens. As a result Massachusetts disabled veterans‘ will continue to be abused and victimized by activist judges. How has it come to be, that alimony reform legislation having such broad appeal, proposed and passed into law without one thought or consideration of the disabled veteran wanting, under similar circumstances according to law?

    How can there be any meaningful reform at the VA when veterans disability compensation payments, enacted by Federal statute and given control over to state divorce court judges to rule according to the judges bias’… likes or dislikes of the disabled veteran or their issues. VA compensation purposely rated for maintaining the health, well being and rehabilitation of disabled veterans is given away, by overlooking, disregarding, violating the law, perhaps punish, to accomplish the task of awarding alimony.

    38 USC 303. “….The Secretary is responsible for the proper execution and administration of all laws administered by the Department and for the control, direction, and management of the Department.”

    Will there be any justice in our court system to protect property rights of disabled veterans? State court judges will continue to push the envelope, and as illustrated, they get away with it. What had Matthew Schmoker done to deserve the injustice he received in a Massachusetts court room? Where in all this is the Veterans Administration? Veterans did their duty. They stand alone. Your duty, … help save veteran’s benefits.

    As a veterans advocate, a Korean era veteran, I am neither disabled or in any divorce action. The reality of law from the disabled veteran’s view,… it’s criminal.

    William Heino Sr.