Are VA disability benefits considered marital property in divorce?

On Behalf of | May 5, 2022 | Military Divorce

A military divorce often follows a complicated path as both parties attempt to work toward their new, independent futures. Even if the spouses both approach the process in agreement, there are numerous layers of negotiations, compromises and challenges both parties must navigate. When examining VA benefits, however, the process can often hit a roadblock.

What is marital property?

During the course of the marriage, the couple will often amass numerous assets and debts that must be valued and divided upon divorce. Assets can range from real property such as the marital home, vehicles or collections of various possessions including books, jewelry, artwork or furniture. Shared debt can often include a joint credit card, medical expenses or personal loans.

What is non-marital property?

For the most part, the court considers any asset that either partner owned prior to and brought into the marriage as non-marital property. For example, a car one party purchased prior to the marriage would not be subject to property division. Even acquired during the marriage, certain assets or financial windfalls are non-marital. These assets can include a gift specifically given to one spouse or an inheritance that a loved one bequeathed to one spouse.

VA disability benefits, however, fall under an added layer of complexity. While the anti-attachment clause of Title 38 of the U.S. Code specifically protects a veteran’s benefits from creditors, it does not shield the benefits in the event of divorce. Further, the Uniformed Services Former Spouse Protection Act (USFSPA) is a federal law that permits, but does not require, state courts to divide certain portions of disposable military retirement pay during property division. The entire bulk retirement pay would not generally be considered disposable – only the portion not designated as disability pay. Even with numerous rules and regulations in place, the court often exerts broad authority in these matters.

A military divorce often follows a complex legal process. It is wise to seek the guidance of an experienced legal professional who can carefully examine your situation and provide uniquely tailored insight.