Are Veterans Benefits Exempt From Garnishment for Child Support?
Full Question:
Answer:
The VA can in its discretion administratively award an apportionment from a veteran’s benefits to a separated spouse or a dependent under 38 U.S.C. § 5307; (2) state courts order veterans to pay, or award, part of their benefits to dependents and ex-spouses under state laws governing support and maintenance, and property division; (3) state courts, under authority of the Uniformed Services Former Spouses’ Protection Act (USFSPA or "the Protection Act"), award part of veterans’ military retired pay to ex-spouses in divorce actions; and (4) state courts may apparently, under a specific waiver of sovereign immunity in the Child Support Enforcement Act (CSEA or "the Enforcement Act"), garnish veterans’ benefits to satisfy obligations for child support or alimony.
The VA will apportion a veteran’s benefits when the veteran "is not reasonably discharging his or her responsibility for the spouse’s or children’s support." 38 C.F.R. § 3.450(a)(1)(ii), (c). VA does not apportion a veteran’s benefits where "the total benefit payable to the disabled person does not permit payment of a reasonable amount to any apportionee." 38 C.F.R. § 3.458. A veteran’s benefits will not be apportioned where the spouse has been found guilty of conjugal infidelity, § 3.458(b), or held himself or herself out to be the spouse of another person, § 3.458(c). In determining whether and to what extent to apportion a veteran’s benefits, VA gives consideration to whether the apportionment would cause a hardship for the veteran, to the amount of benefits the veteran receives, the veteran’s resources in relation to the resources of those on whose behalf apportionment is sought, and the special needs of the veteran or dependents. Ordinarily, VA will not apportion more than half of a veteran’s benefit because that would constitute an undue hardship on the veteran, and VA will not apportion less than 20% of the veteran’s benefits because that would not provide a reasonable amount for the apportionee. 38 C.F.R. § 3.451.
The greatest area of concern is actions by state courts in ordering support payments from VA disability compensation. There is a strong belief, supported by the holdings of some courts, that such court awards are contrary to federal statute and congressional intent. Nonetheless, opposition to these actions have been frustrated by a decision of the Supreme Court that held veterans’ benefits are not exempt from court-ordered support awards.
You would need to file a motion to enforce child support. The type of motion will depend on all the facts involved, such as whether it was a determination or enforcement of child support that ws held in abeyance. We suggest you contact a local attorney who can review all the facts and documents involved.
For further discussion, please see:
http://www.fa-ir.org/alabama/cs/cs_disability.htm
http://veterans.house.gov/hearings/schedule105/aug98/hearing8-5/dav8-5-98.htm