Florida is considered an equitable distribution state; meaning, courts will presume an equal division of marital assets and liabilities, unless a party demonstrates some justification to deviate from such a division.
Are Disability Benefits Marital Property?
The provisions of the Uniformed Services Former Spouses’ Protection Act excludes your Veterans Benefits Administration (VA) disability benefits from consideration as marital property. As a result, they are not subject to division during a divorce.
Can VA Benefits Be Garnished?
VA benefits are designed to provide support to veterans and their families, which means children and spouses have legal rights to some amount of the veteran’s VA benefits as a means of support. Thus, if a veteran fails to pay spousal or child support, a court may garnish part of your VA benefits as a remedy.
In order to garnish the veteran’s benefits, the veteran’s eligible family must choose to receive an apportioned share of the veteran’s benefits by filing VA Form 21-0788 with the Department of Veterans Affairs. Apportionment allows the VA to assign some of the veteran’s benefits to the family member.
VA disability compensation may not be garnished by court order. However, if you waived part of your taxable military retired pay as a condition for receiving nontaxable VA benefits, your disability benefits can be garnished to pay any spousal or child support obligations.
While the amount of VA benefits subject to garnishment will vary, usually 20-50% can be taken to fulfill family support payments, depending on the needs of the veteran’s dependents. However, veterans may contest any garnishment in the interests of justice.
Garnishment will be denied in the following situations:
- If garnishment would result in undue financial hardship on the veteran;
- The veteran’s dependents have not filed for apportionment;
- The veteran’s former spouse remarries; or
- The veteran’s former spouse was found guilty of conjugal infidelity.
Speak with a Serious Altamonte Springs Divorce Attorney
Divorce is a complex area of family law that can touch on several other areas of law, such as tax, probate, and veterans law. As a result, those who are going through a divorce should find an experienced Altamonte Springs divorce attorney to guide them through this challenging process. At the Law Office of Russel S. Hershkowitz, LLC, our lead attorney has the skill and sophisticated knowledge you’re looking for when it comes to effective representation in your divorce. Attorney Russell S. Hershkowitz will zealously advocate on your behalf, giving your interests the proper consideration they deserve during divorce proceedings.
To schedule your free consultation with a qualified divorce lawyer, call us at (407) 753-4111 or contact us online today.