Veterans’ from across this nation are concerned about the indiscriminate taking of Congressional mandated Veterans’ Administration benefits by state courts. In seeing that these benefits are protected against state court abuses, veterans’ are watching.
Veterans cannot stand by, and no longer let these issues go unchallenged. To serve as a reminder that, no matter what a veterans’ loss, and service to this country had been, there are those individuals, and courts out to destroy what veterans’ fought, sacrificed and tried to preserve. Veterans’ therefore, must forever be vigilant. These are men and women who volunteer their time and sacrifice their lives to protect the freedoms granted by the Constitutions of the United States.
I would like to quote a portion of the U.S. Constitution Supremacy Clause of Article VI. “This Constitution, and the laws of the United States which shall be made pursuant thereof, and all treaties made, under the authority of the United States, shall be the Supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or Laws of any State to the contrary, not withstanding.”
Unscrupulous lawyers and local judges are creating a financial windfall by awarding former spouses alimony from retired disabled veteran’s disability compensation. This is wrong and in error, and in violation of Title 38, section 5301 (a), USC Title 10 section 1408 and the state of Florida’s own statue, Title XLIII Chapter 744.626.
Disabled veterans receiving VA disability compensation upon divorce end up having a state court awarding the ex-spouse, “free” U.S. taxpayer money to a person who had no prior connection, interest, dependency, or relationship before the marriage. What ever happened to the legal theory, property that is obtained before marriage is not divisible? State courts, by these unfair rulings, are perpetuating, and encouraging divorce.
“TITLE 10–ARMED FORCES Subtitle A-General Military Law PART II-PERSONNEL CHAPTER 71–COMPUTATION OF RETIRED PAY Sec. 1408. Payment of retired or retainer pay in compliance with court orders…
(4) The term “disposable retired pay” means the total monthly retired pay to which a member is entitled less amounts which– (A) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (B) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38;… (c) Authority for the court to treat retired pay as property of the member and spouse.–(2) Notwithstanding any other provision of law, this section does not create any right, title, or interest which can be sold, assigned, transferred, or otherwise disposed of (including inheritance) by spouse or former spouse.”
Title 38 USC 5301. Nonassignability and exempt status of benefits (a) Payments and benefits due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary…(b) This section shall prohibit the collection by setoff or otherwise out of any benefits payable pursuant to any laws administered by the Secretary and relating to veterans’ their estates or their dependents, of any claim of the United States or any agency thereof against (1) any person other that the indebted beneficiary or the beneficiary’s estate, or (2) any beneficiary or the beneficiary’s estate except amount due the United States by such beneficiary or the beneficiary’s estate..”
The Supreme Court of Florida; In Padot v. Padot. “..Because Husband’s condition deteriorated, Husband’s veterans’ disability benefits increased, and correspondingly, a decrease of military pay. Military payments to Wife stopped accordingly…..
The First district acknowledged the equitable dilemma faced by the trial court, but found reversal [of Second District] necessary under Federal Uniformed Services Former Spouses’ Protection Act and Federal case law prohibiting any distribution of veterans’ disability benefits to a former spouse. 10 USC s.1408 (a) (4) (B); 10 USC s. 1408(c)(1); Mansell v. Mansell 490 US;581(1989). The First district held. Here the former wife’s special equity interest in former husband’s retirement benefits was extinguished by operation of law upon re-allocation of former husband’s benefits from retirement to disability……
My case is almost identical to Padot v. Padot. In Padot v. Padot, like my case, we retired on full military retirement. As disabilities became apparent due to our condition deteriorating, we were given an award of disability and then increases in disability. Until 2004 concurrent receipt was not available to military personnel. Therefore in order to receive disability we had to waive our retirement pay into VA disability compensation. In my particular case, I was first rated at 30% (I waived that percent of my retirement pay), then I went to 60% ( again I waived that percentage from my retirement pay) then I went to 100%(and again waived that percentage)!!
Each time I waived the particular percentage, the former spouse would file a Motion of Contempt. I would be found uncooperative, but not in willful contempt. And the court would again award the former 50% of my disability compensation using 42 USC section 659 (h) (1) (A) (ii) (V) and code of Federal Regulation 581.103 (C) (7), which reads: that portion of Disability pay that was waived over from retirement pay is garnishable. And of course I finally waived 100%. Disability compensation is “disability compensation”, it should not matter how it became “disability” only that it is for service connected disabilities incurred from combat service.
Military retired pay and veteran’s disability compensation are two entirely different things, paid for different purposes and one should not offset the other. Each of these is earned in its own right. Retired pay for a career of arduous military service, and disability compensation for the pain, suffering, and lost future earnings resulting from service-incurred disabilities.
Courts of other states have also concluded that federal law preempts a state court from dividing a spouses’ present or future VA disability benefits during dissolution proceeding. [Cases cited] Relying on Hisquierdo and section 5301(a)(1), these courts have found that payment of disability benefits is not an earned property right accrued out of specific terms of service, but instead a benefit of employment that may be withdrawn at any time and under any condition that Congress may choose.
As such, the recipients of such benefits have no vested right in their continuing receipt. After comparing the federal statutory prohibitions against attachment of both disability benefits and railroad benefits, these courts have concluded that the division of anticipated VA disability benefits conflicted with the clear intent of Congress that the benefits are solely for the use of the disabled veteran.
Research has uncovered one Illinois decision addressing the question of whether military disability benefits are martial assets subject to division in a dissolution proceeding. See In re: Marriage of Hapaniewski 107 Ill. App 3rd 848(1982). In Hapaniewski the reviewing court considered the former Husband’s argument that the trial court had violated federal law when it awarded his former spouse additional martial property as an offset to his military disability benefits. After reviewing the legislative history of the veterans’ disability compensation program, the reviewing court explained that the purpose of the program was to provide relief from the impaired earning capacity of the veteran’s disabled as a result of military service.
Veterans, and those returning from Iraq, Afghanistan, and Walter Reed Medical Center rely on the same wording as in Florida law, the Constitution of the United States, case law, United States Code, Florida Supreme Court rulings, City of Miami Municipal Code, Florida Statutes, but the inconsistencies with these laws as applied to, is never-the-less, the local state judges ruling. The injustice being, applicable laws, both Federal, and Florida, having been circumvented in order to secure Veterans Administration (VA) disability benefits, in a sort of an equitable alimony distribution. To perceive some sort of fair justice.
In my case as indicated by Circuit Judge Robert Foster’s judgment award, at a time of my greatest need, I appealed for help. It is apparent, my service, sacrifice, the laws of the United States, its Constitution, and the laws of Florida had no effect. Judge Foster’s and Judge Sabella’s ruling indicates clearly, it did not matter how distinguished my service has been to this nation in defending the preservation and protection of these laws, and our country. Circuit Court judge Foster and Sabella interpreted the law, and concluded, by their order, Veterans’ Administration (VA) disability payments is fair game, in stark contrast to Florida State statutes, case law, and the applicability of federal law.
42 USC 659 is the law referred to, giving consent to the Secretary of the Treasury, to the administrative enforcement of withholding or garnishment. However, again, 659 cannot be referred to, or used as arguments, in the justification for withholding. This is exactly what happened in my case. Where Judge Robert Foster, entered in his order on former wife’s motion for contempt and motion to increase VA disability garnishment by stating, “Under 42 USC 659(h) (A) (ii) (V) that portion of VA Disability pay that was waived over from retirement pay is garnishable.
Being two distinct and unrelated issues, the obvious question being, what has a Veterans’ Administration retired pay benefits have to do with Social Security disability compensation? Absolutely nothing! Except for the fact it reveals the judges thinking. Into his not letting me get off that easy. And as many Judges do, will use the authority of the court to punish a veteran.
What is so appalling is the order blasphemously violates federal law! The Department of Veterans Affairs have a fiduciary responsibility to protect disabled veterans disability compensation from the claims of creditors, attachment, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary? The Department of Veterans Affairs have a fiduciary duty to protect veteran’s disability compensation as mandated under Title 10 USC 1408 and Title 38 USC 5301.
SFC, USA, Retired
Disabled Combat Veteran