Alimony and VA Disability Payments: What Veterans Need to Know

Yes, VA disability payments can be used to calculate alimony and spousal support. The U.S. Supreme Court ruled in Rose v. Rose (1987) that VA disability benefits are intended to support not just the veteran, but also their family members, making them a valid source of income for support obligations. However, while VA disability benefits count as income for determining alimony, they generally cannot be garnished directly for alimony unless the veteran waived military retirement pay to receive them.

Can VA Disability Benefits Be Used for Alimony?

Yes. Despite the common misconception that VA disability benefits are "protected from everything," they are not protected from family support obligations. Under 38 U.S.C. § 5301(a)(1), VA benefits are generally exempt from "attachment, levy, or seizure" by creditors . However, the U.S. Supreme Court made clear in Rose v. Rose (1987) that this protection does not apply to family support obligations.

In Rose, the Court held that VA disability benefits were never intended to be exclusively for the subsistence of the veteran. Rather, Congress intended such benefits to support not only the veteran, but the veteran's family as well . The Court stated that "children may rightfully expect to derive support from a portion of their veteran parent's disability benefits" .

Courts across the country have extended this reasoning to alimony. For example, the Iowa Court of Appeals held that "It is clear veterans benefits are not solely for the benefit of the veteran, but for his family as well" when ordering alimony from a veteran's disability payments . Similarly, the Montana Supreme Court has recognized that "a state court is clearly free to consider post-dissolution disability income and order a disabled veteran to pay spousal support even where disability benefits will be used to make such payments" .

Can VA Disability Benefits Be Divided as Property in Divorce?

No. VA disability benefits cannot be divided as marital property in a divorce under the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408 . This is because disability benefits are intended to compensate for a veteran's reduced earning potential, not as an asset to be divided. However, this does not prevent courts from considering these benefits as income for support calculations .

Can VA Disability Benefits Be Garnished for Alimony?

The rules for garnishing VA disability benefits for alimony differ from those for child support. For VA disability benefits to be garnished for alimony or child support, the veteran must have waived military retired pay to receive VA compensation . In that case, only the portion of the VA benefit that replaced waived military retired pay can be garnished .

If a veteran has not waived military retirement pay, VA benefits cannot be garnished directly for alimony . However, a state court can still order the veteran to pay alimony and hold the veteran in contempt for failure to pay, even if the veteran's only means of satisfying the obligation is to use VA disability benefits .

Direct Garnishment (Not Applicable for Most Veterans)

The law permitting garnishment of VA benefits for family support comes from 42 U.S.C. § 659 and 5 C.F.R. Part 581 . However, according to the VA Office of the General Counsel, VA benefits can only be garnished if the veteran has waived military retired pay to receive the VA benefit . This means for most veterans who receive VA disability without having waived retirement pay, the VA will not withhold benefits for alimony garnishment.

The Rose Exception for Alimony

Even without direct garnishment, state courts can still consider VA disability as income for alimony calculations and may order payment of support from these benefits. As the North Carolina State Bar notes, "there is no justification in disobeying a judge whose ruling is based on the well-recognized decision of the U.S. Supreme Court" .

When Can VA Benefits Be Directly Garnished?

Direct garnishment of VA benefits is possible only when:

1. The veteran waived military retired pay to receive VA disability compensation
2. The garnishment is for child support or alimony
3. The court order is properly served on the VA

Even then, garnishment may be denied if it would cause serious financial hardship for the veteran . Courts generally look at factors including the veteran's other income sources, special needs, and the amount of income available to the former spouse .

What If You Are Facing an Alimony Order?

If you are ordered to pay alimony and your VA disability benefits are your primary source of income:

1. Understand that courts can consider VA disability as income for alimony calculations
2. The court can hold you in contempt for failing to pay, even if your only income is VA benefits
3. Direct garnishment of VA benefits for alimony only applies if you waived retirement pay
4. If you believe the court order is incorrect, you must challenge it through the state court system, not the VA
5. Seek legal representation experienced in veterans' benefits issues

FAQ

Can alimony be taken from VA disability pay?

Courts can consider VA disability as income when calculating alimony, but direct garnishment is generally only available if the veteran waived military retired pay to receive VA compensation . However, a veteran can be held in contempt for failing to pay alimony even if VA disability is their only income source .

Is VA disability considered income for alimony?

Yes. The U.S. Supreme Court held in Rose v. Rose that VA disability benefits are intended to support both the veteran and their family, and state courts can consider these benefits as income for support obligations .

What veterans' benefits are exempt from alimony?

VA disability benefits are exempt from most creditor claims, but not from family support obligations. The anti-attachment provision (38 U.S.C. § 5301(a)(1)) does not prevent courts from considering these benefits for alimony and child support .

Can my ex-spouse garnish my VA disability for alimony?

Direct garnishment of VA benefits requires the veteran to have waived military retired pay to receive VA compensation . If you have not waived retirement pay, the VA will generally not directly garnish your benefits, but a court can still order you to pay alimony and hold you in contempt for non-payment .

What if I can't afford alimony payments?

If your financial situation changes, you must seek a modification of the alimony order through the state court that issued it. The VA generally does not have authority to modify support orders .

Disclaimer: This content is for informational purposes only and is not legal, financial, or tax advice. It is not affiliated with the U.S. Department of Veterans Affairs. Family law varies by state always consult a qualified family law attorney for advice specific to your situation. VA policy, rates, and forms change verify current details on VA.gov before acting.