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Are veteran's disability benefits fair game in a divorce?

Yes and no.

In Tennessee and virtually every other state, family courts are allowed to include veteran's disability benefits in calculating child support and spousal support payments in a divorce. The authority for this practice stems from the U.S. Supreme Court decision in Rose v. Rose, in which the court held that disability pay was intended to support both the veteran and his or her family.

However, a 1982 federal law and another Supreme Court case precedent (Mansell v. Mansell) seem to preclude state courts from treating veteran's disability payments as marital assets for purposes of property division in a divorce, civilian or military. States, for their part, have interpreted the federal law and prior precedents in different ways.

Last month, a disabled veteran whose military disability benefits were used to calculate spousal support in his divorce asked the Supreme Court to reconsider the issues and overturn the previous state court divorce ruling he was a party to.

The petition filed by the veteran's attorney asked the court to determine whether a section of Title 38 of the U.S. Code that makes veteran's disability benefits immune "from taxation, claims of creditors, attachment, levy and seizure," also protects disability pay from being included in support calculations.

While acknowledging that a favorable decision would adversely impact many former spouses of disabled military veterans, his attorney argued that disability pay is intended to compensate veterans for losses of income resulting from service-connected injuries and medical conditions, and that spouses have no direct claim to such compensation. Supporting that position, he says, is the fact that the Veterans Administration awards higher disability payments to veterans who are married and subsequently reduces the disability benefit if the veteran gets a divorce.

As yet, the Supreme Court has not decided whether it will review the petition in question.

Source: The Daily Herald.net, "Ruling sought on split of military benefits in divorce," Tom Philpott, May 21, 2012

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