Disabled Veteran petitions Supreme Court over benefits in divorce

Posted by Charlotte Webster

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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2 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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