No, unlike military retirement pay, VA Disability Compensation cannot be divided during a divorce. This is made clear in the Uniformed Services Former Spouses’ Protection Act. VA disability benefits are treated differently from military retirement benefits, which can be divided during a divorce.
While that seems like a simple enough answer, there is still a lot of confusion around how VA disability benefits are treated in a divorce.
While the disability pay is not considered marital property that can be divided in a divorce, it is still income that can be taken into consideration when determining child support or alimony.
Child support and alimony are calculated based on a variety of factors, including the income of both parents or spouses. When the court is looking at how much child support should be ordered, or whether alimony should be awarded, it can consider VA disability income as part of the veteran’s income.
In that sense, VA disability benefits could end up being used to pay for child support or alimony that is ordered.
Many veterans are surprised to hear this because VA benefits are carefully protected from third-party creditors under federal law. These benefits are intended to go to the veterans who earned them and no one else.
But what the Supreme Court decided in the 1987 case Rose v. Rose is that VA disability benefits are intended to “provide reasonable and adequate compensation for disabled veterans and their families,” not just the veteran alone.
The Court held that “Congress clearly intended veterans’ disability benefits to be used, in part, for the support of veterans’ dependents.”
It’s important to keep in mind that military divorce law is unique, and there are various federal and state laws that apply. For that reason, working with a family law attorney who has experience handling military divorce is crucial, for both the veteran and the veteran’s spouse.