VA disability and alimony

[haiki]

Perhaps this… the protection of VA disability from alimony?

38 USC 5301 is the protection of VA disability compensation against alimony awards to third parties. Although they contribute to the problem, state court judges, lawyers, and state legislators see only what they want to see. Make judgments according to precedent, the easy route, “stare decisis”, Rose v. Rose, and their misrepresentation of Administrative law, 42 USC 659. Helping this process along is the Veterans Administration policy. Rubber stamping each state court garnishment order without thought or questioning. Disregarding the rules of Compliance With Process procedure. “The governmental entity shall comply with legal process, except where the process cannot be complied with because: ..” The “because” to all this follows.
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General counsel Department of Veterans Affairs before the House Committee on Veterans Affairs. Mr. Thompson speaking on the subject at hand states , “The sole exception is that VA compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.”
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Mr. Thompson continues, “VA benefits, including even disability compensation received in lieu of retired pay, are also protected by Federal law from court-ordered divisions of property upon veterans’ divorces. However, The United States Supreme Court ruled in Rose v. Rose 481 U.S. 6219(1987) that state courts are not precluded from setting child support obligations at such levels that veterans would necessarily have to use some of their disability compensation to meet them.”
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VA compensation can be garnished only if two (2) conditions exist, to satisfy court ordered, (1) child support and (2) alimony obligations. The “sole exception” Not one(1), but two(2) conditions.
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“The interpretation of the General Counsel on legal matters, contained in such opinions, is conclusive as to all VA officials and employees, not only in the matter at issue, but also in future adjudications and appeals involving the same legal issues, in the absence of a change in controlling statute or regulation or a superseding written legal opinion of the General Counsel.”
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“VA monetary benefits, entitlement to which is generally based on either the veteran’s disability and wartime service (pension) or disability from service-connected injury or disease (compensation), is generally not considered remuneration for employment.”
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42 USC Section 659. Consent by United States to income withholding,… for enforcement of child support and alimony obligations. Reading further on, worded as, “(i)(5)(B), to provide child support or make alimony payments”, “(e) child support or alimony”. Why child support or alimony? To cover all conditions of a veteran’s activity, such circumstances in retirement or employment, in order to carry out court ordered alimony judgments in garnishing retirement payments, military pay, assets, etc., classified and based ….as remuneration for employment. “Remuneration” conditions having absolutely nothing to do with a veterans’ disability compensation. A disabled veteran, having no child support issues, is receiving disability compensation not based on remuneration for employment, therefore not subject to garnishment.
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“The test to determine if a payment is subject to garnishment is whether the payment is remuneration for employment as defined in section 459 [42 U.S.C. 659(a) and (h).“You will see that in 659 (V) they are talking about retired or retainer pay where “..the entitlement to which is based upon remuneration for employment”
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“(h) Moneys subject to process
(1) In general
Subject to paragraph (2), moneys payable to an individual which are considered to be based upon remuneration for employment, for purposes of this section -
(V) by the Secretary of Veterans Affairs as compensation for a service-connected disability paid by the Secretary to a former member of the Armed Forces who is in receipt of retired or retainer pay if the former member has waived a portion of the retired or retainer pay in order to receive such compensation;..”
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TITLE 5--ADMINISTRATIVE PERSONNEL CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT PART 581
_PROCESSING GARNISHMENT ORDERS FOR CHILD SUPPORT AND/OR ALIMONY --
Honoring legal process.
(a) The governmental entity shall comply with legal process, except where the process cannot be complied with because:
(2) The legal process would require the withholding of funds not deemed moneys due from, or payable by, the United States as remuneration for employment;
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What have these laws taught us? That disability compensation is not.. retired or retainer pay. Therefore not.. remuneration for employment compensation. That the VA’s mandate ignores compliance with its legal process, and illegally continue to complying, and processing state court ordered judgments outside the guidelines of federal law.
=What is the name of your state (only U.S. law)?

 

[TheGeekess]

Nice vent.

Write your state representatives and your Congressman.

 

[haiki]

Unfortunately, this does not work. After working on this for more than nine years, I have found, as many veterans have found out, nobody cares! But, I'll keep going. The following is my latest.

Observance to federal law and our disabled veterans.

Oregon and the United States Supreme Court observance to law and our disabled veterans.

Oregon’s statutes clearly offer many references, in compliance, observance, and their adherence to both state and federal law and protecting veterans benefits.

18.600 Definitions. As used in ORS 18.600 to 18.850:
(6) “Federal benefit payment” means:
(b) A benefit payment from the United States Department of Veterans Affairs that is protected under 38 U.S.C. 5301(a);

34 § 411.837¹ Compliance with state and federal laws required
10 § 409.040¹ Federal law supersedes state law.
26 § 279A.030¹ Federal law prevails in case of conflict

ORS 18.345 Exempt personal property generally. (1) All property, including franchises, or rights or interest therein, of the judgment debtor, shall be liable to an execution, except as provided in this section and in other statutes granting exemptions from execution. The following property, or rights or interest therein of the judgment debtor, except as provided in ORS 18.305, shall be exempt from execution:
(m) Veterans’ benefits and loans.
(ORS 18.305 [Property not exempt from execution for purchase price])

ORS 18.845 Notice of exemptions form; instructions for challenge to garnishment.
State and federal law specify that certain property may not be taken.
(21) Veterans’ benefits and loans.
(22) Medical assistance benefits.
YOU MAY USE THE CHALLENGE TO GARNISHMENT FORM ONLY FOR THE FOLLOWING PURPOSES:
(1) To claim such exemptions from garnishment as are permitted by law.

Oregon’s reference’s to state federal law statutes indicates compliance. Benefits protected under 38 USC 5301. Nonassignability and exempt status of benefits, is the Oregon state and federal protection of the disabled veteran’s VA disability compensation. “(a)(1) shall not be assignable… shall be exempt from taxation, .. creditors, ..attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

Yet, Oregon courts, rather than comply with State or federal law (38 USC 5301) in protecting veterans benefits, offer in response, Landis v Landis, Oregon 6/1/2005, “.. benefits are divisible … because there is no conflict.” The United States Supreme Court concurs. Disabled veterans need not apply!

After costly legal expense, it wasn’t disabled Air Force veteran Oregon resident Peter James Barclay, or the thousands of other disabled veterans that received any benefit of these state and federal laws, involved in protecting VA disability compensation from State court ordered spousal support, and then, adding insult, denied his Constitution rights by Oregon’s State Supreme Court. And further, the unforgivable refusal of the United States Supreme Court to consider his May 2, 2012 petition, requesting, “The Court Should Grant Review to Determine Whether State Courts Are Erring as a Matter of Law By Preempting Federal Law with State Law Federal Law, by Considering VA Disability Pay Divisible Under State Community or Equitable Distribution Laws.” (Oct 1 2012) Petition DENIED.

As a Korean era veteran, I am neither disabled, or in any divorce action. Because of the Supreme Court of the United States and Oregon’s indefensible and unconscionable treatment of disabled veterans, reflects the unforgivable uncaring of most States, and it’s legislators towards their disabled veterans. Something that is happening now, in your state! Happening... because of Oregon’s rulings. The practice by State courts nationwide reliance on forum shopping and the false notion of ‘stare decisis’ “to stand by things decided.” I suspect these references in Oregon’s state statutes, protecting state and federal veterans disability benefits, will, under pressure by Oregon’s legislators legal community, amend the law, (as they did it in Texas). However, not happening in the only state that has not forgotten about the sacrifice disabled veterans gave to their country, IOWA.

 

[Proserpina]

Is there a point to any of this?

 

[quincy]

... As a Korean era veteran, I am neither disabled, or in any divorce action. ...

Thank you for your service to our country, haiki.

This forum is designed to address individual legal problems and concerns as they relate to the laws currently in place. This forum is not designed to be used as a platform for those wanting to change laws. There are other places on the internet for that.

The advice TheGeekess offered you in 2011 is advice that needs repeating. You might try to find an organization that has a voice louder than yours to help you deliver your message to those who have the power to make the changes you want. I do not know of an organization offhand that can help.

 

[RRevak]

Since this thread is old and not really a thread anyway i'll ask a burning question i've had for a while. So what would happen if the individual supposed to pay just stopped? Say he/she had a serious lack of funds, maybe a layoff or downshift in job stability that reduced the income enough to make alimony a significant burden, and they just stopped paying? Could someone be jailed or have their wages garnished just because they stopped paying their exes? There have been times where i've seen people on here speaking about how they just can't afford to keep paying while their alimony isn't modifiable and I really wish I could just say "well then don't pay anymore" but have always wondered the consequences of such an action.

 

[LdiJ]

Since this thread is old and not really a thread anyway i'll ask a burning question i've had for a while. So what would happen if the individual supposed to pay just stopped? Say he/she had a serious lack of funds, maybe a layoff or downshift in job stability that reduced the income enough to make alimony a significant burden, and they just stopped paying? Could someone be jailed or have their wages garnished just because they stopped paying their exes? There have been times where i've seen people on here speaking about how they just can't afford to keep paying while their alimony isn't modifiable and I really wish I could just say "well then don't pay anymore" but have always wondered the consequences of such an action.

Wage garnishments and being jailed for contempt of court ARE two options that a judge could use.

 

[RRevak]

Wage garnishments and being jailed for contempt of court ARE two options that a judge could use.

Wow really? I completely understand such actions for child support because the children don't have the ability to control how they're supported but to use such actions in regard to paying ones adult ex seems extreme. I now see a bit better why those who oppose alimony feel the way they do and why those who are subject to paying are a bit grumpy about it.

 

[LdiJ]

Wow really? I completely understand such actions for child support because the children don't have the ability to control how they're supported but to use such actions in regard to paying ones adult ex seems extreme. I now see a bit better why those who oppose alimony feel the way they do and why those who are subject to paying are a bit grumpy about it.

Lets imagine a scenario where a spouse making 100k a year has kicked their stay at home spouse of 25 years to the curb for a girl or boy toy...and that spouse is struggling to find a way to get educated and back into the work force, with not that many years left to work and pay off student loans. Would you then agree that there should be no method to enforce alimony?

With some exceptions, alimony is given for a reason. Its not an automatic thing like child support. Its designed to help a spouse that has been out of the workforce for a long period of time, or has no marketable skills, or is disabled, etc. to gave a breathing period to get to the point where they can support themselves. Its primarily designed to prevent higher income spouses from kicking a long term spouse to the curb, leaving them destitute.

 

[tuffbrk]

Sorry - you know I almost always am in agreement with you LDIJ, but I disagree. There are a few states in which your statement may be true. But in most states, alimony is nothing more than a redistribution of income when discussing long-term marriages. Whoever earns more money at the time of the divorce is ordered to pay a portion of the difference in income to the lower earning party. Period. It doesn't matter if it was a child less marriage. It doesn't matter if both parties earn a living wage. It doesn't matter if there was an actual sacrifice by one of the parties. All that matters is that one party is earning more than the other. You need only look at multi-millionaire celebrities and their divorce agreements to realize that alimony is not about a "needs based" model and is all about redistribution of income.

And Rrevak - many, many states automatically place a wage garnishment against the payer at the time of the divorce. In fact, the federal government recently publicized their intent to make that a standard across all of the states. If the state wants to continue to receive their federally funded CSE funding, they will have to institute the measure. Thus, most will put it into place if it's not already a standard.

Just a Jersey girl's 2 cents...

Have a happy day all.

 

[Bali Hai]

Wow really? I completely understand such actions for child support because the children don't have the ability to control how they're supported but to use such actions in regard to paying ones adult ex seems extreme. I now see a bit better why those who oppose alimony feel the way they do and why those who are subject to paying are a bit grumpy about it.

There is another reason for an alimony award. The receiver can't get social services assistance when they decide to become a deadbeat.

 

[Bali Hai]

Sorry - you know I almost always am in agreement with you LDIJ, but I disagree. There are a few states in which your statement may be true. But in most states, alimony is nothing more than a redistribution of income when discussing long-term marriages. Whoever earns more money at the time of the divorce is ordered to pay a portion of the difference in income to the lower earning party. Period. It doesn't matter if it was a child less marriage. It doesn't matter if both parties earn a living wage. It doesn't matter if there was an actual sacrifice by one of the parties. All that matters is that one party is earning more than the other. You need only look at multi-millionaire celebrities and their divorce agreements to realize that alimony is not about a "needs based" model and is all about redistribution of income.

And Rrevak - many, many states automatically place a wage garnishment against the payer at the time of the divorce. In fact, the federal government recently publicized their intent to make that a standard across all of the states. If the state wants to continue to receive their federally funded CSE funding, they will have to institute the measure. Thus, most will put it into place if it's not already a standard.

Just a Jersey girl's 2 cents...

Have a happy day all.

EXAMPLE:

http://www.foxnews.com/us/2015/01/07/angry-divorcee-refuses-74m-check-from-billionaire-oil-tycoon/