Mark E. Sullivan
Mr. Sullivan, a retired Army Reserve JAG colonel, practices family law in Raleigh, NC and is the author of The Military Divorce Handbook (American Bar Association, 2d Ed., 2011), from which portions of this article are adapted. He is a fellow of the American Academy of Matrimonial Lawyers and has been a board-certified specialist in family law since 1989. He works with attorneys nationwide as a consultant on military divorce issues and to draft military pension division orders. He can be reached at 919832-8507 and mark.sullivan@ncfamilylaw.com.
There is a lot of confusion among family law attorneys, and practitioners in general, about VA disability compensation payments. The questions and responses below will help to clear the muddy waters.
Q. Are VA benefits subject to levy, seizure, or attachment?
A. In general, the answer is no. Under 38 U.S.C. § 5301(a)(1), benefits paid by the Department of Veterans Affairs (VA) are not subject to levy, seizure, or attachment. "However," adds Steve Shewmaker, a Georgia lawyer who is also an Army Reserve JAG lieutenant colonel, "the general rule is that they are available for consideration by the court in deciding matters of family support. Levy, seizure, or attachment refers to collection of debts; the courts interpreting this have consistently stated that this does not mean the duty of support for a family."
Q. Do the cases on "family support" include alimony as an exception to 38 U.S.C. § 5301(a)(1)?
A. Yes—alimony (also known as spousal support or maintenance) is one of the exceptions. A useful example would be a 1994 Iowa case involving an appeal from an alimony decision. The husband's main source of income was a VA disability check of $1,548 per month. It was based on a disability rating of 100%. In that case, In re Marriage of Anderson, 522 N.W.2d 99, 101-102 (Iowa App. 1994), the state court of appeals recognized this "family support exception" to 38 U.S.C. § 5301(a)(1):
The issue raised by the appellant has been answered by the United States Supreme Court in the case of Rose v. Rose, 481 U.S. 619, 107 S. Ct. 2029, 95 L. Ed. 2d 599 (1987). The Rose case involved nonpayment of child support as opposed to nonpayment of alimony. However, both are viewed as familial support by the United States Supreme Court in Rose. 481 U.S. at 631-32, 107 S. Ct. at 2037, 95 L. Ed. 2d at 611. The Rose case involved a disabled veteran whose sole means of support was his V.A. checks. The state court held him in contempt for failure to pay child support. The U.S. Supreme Court held a state court has jurisdiction to hold a disabled veteran in contempt for failing to pay child support, even if the veteran's only means of satisfying his obligation is to use veteran's benefits received as compensation for a service-connected disability. 481 U.S. at 619, 107 S. Ct. at 2030, 95 L. Ed. 2d at 604. The Court held:
Neither the Veteran's Benefits provisions of Title 38 nor the garnishment provisions of the Child Support Enforcement Act of Title 42 indicate unequivocally that a veteran's disability benefits are provided solely for that veteran's support. We hold, therefore, that as enacted these federal statues were not in conflict with and thus did not preempt § 36-820 (the Tennessee child support statute). Nor did the Circuit Court's efforts to enforce its order of child support by holding appellant in contempt transgress the congressional intent behind the federal statutes.
481 U.S. at 636, 107 S. Ct. at 2039, 95 L. Ed. 2d at 614.
Q. Are there cases in other states that also say this?
A. Yes. In a 1984 Louisiana Court of Appeals case, the trial court found that the husband, Mr. Collins, had virtually no source of income other than his VA benefits. The husband argued that VA benefits are exempt from awards of temporary alimony ("alimony pendent lite") under the anti-attachment wording in Title 38. The court of appeals stated:
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Mr. Collins was obliged to, and did support Mrs. Collins out of his Veterans' benefits during the time they lived together. His obligation to support her out of whatever income and assets are available to him continues until their marriage is dissolved by divorce.
An award of alimony pendente lite is not an "attachment, levy, or seizure" as contemplated in 38 U.S.C.A. § 3101(a) [the previous number for this section of Title 38]....
The provisions of 38 U.S.C.A. § 3101(a) do not apply to awards of alimony pendente lite. The duty to pay alimony pendente lite does not arise as the result of the judicial process. An award of alimony pendente lite is the legal enforcement of a marital duty rather than a process for the collection of a debt. If no other income is available for the purpose, Mr. Collins must use his Veterans' benefits for the support of Mrs. Collins when she "has not a sufficient income for maintenance pending suit". La.C.C. Art. 148. The trial judge erred in discontinuing the previous award of alimony pendente lite.
Collins v. Collins, 458 So. 2d 1008 (La. App. 1984)
In a 1990 Maryland case, the court of special...
