Disabled Veteran petitions Supreme Court over benefits in divorce
In 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.