skydog said:
I live in California. I am a 100% disabled veteran and receive VA disability and Social Security Disability. If my wife and I divorce, is she entitled to my disability benefits?
My response:
Military pensions and disability pay
The U.S. Supreme Court held in McCarty v. McCarty (U.S. 1981) 69 L.Ed.2d 589, 101 S.Ct. 2728, that military retirement pay is not subject to division under state community property laws. The decision was effectively abrogated by the passage of the Federal Uniformed Services Former Spouses’ Protection Act (FUSFSPA) [10 USCA § 1408], which allows state courts, under prescribed circumstances, to divide nondisability military retirement and retainer pay. [See In re Marriage of Hughes (1994) 26 Cal.App.4th 34, 31 Cal.Rptr.2d 250 (retainer pay and retirement pay are synonymous and equally recoverable by divorced spouse]
Military disability pay is not divisible under state community property laws. In Mansell v. Mansell (U.S. 1989) 104 L.Ed.2d 675, 109 S.Ct. 2023, the Supreme Court held that the extent to which California community property law can apply to division of military pensions is defined by FUSFSPA, which provides state court orders can only reach 50 percent of a service member’s "net" monthly retired pay, a figure that excludes the disability percentage of retired pay and amounts waived in order to receive disability compensation. [10 USCA § 1408(a)(4)]
Though not divisible as community property, courts will enforce a stipulated judgment awarding the non-military spouse a share of the military spouse’s retirement pay, even if the military spouse later waives all or a portion of that pay in order to obtain disability benefits. [In re Krempin (1999) 70 Cal.App.4th 1008, 83 Cal.Rptr.2d 134, review den.]
IAAL
