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Generally speaking, military disability pay is not eligible for property division during divorce. Military service members are unable to set aside a portion of either their VA disability pay or military disability retirement pay as part of a divorce agreement.

However, there is a provision a couple can include when deciding to settle the matter of military disability pay and divorce. If a military service member’s divorcing spouse is entitled to a portion of the service member’s retirement benefits, and the service member later waives a significant portion of these benefits in order to receive disability pay instead, then the spouse may be able to claim a comparable portion of these benefits. This agreement can be put in place during a divorce decree, and its enforceability may be subject to state law, federal law, or individual court rulings.

Military divorces can have the unfortunate consequence of being more complicated than a typical civilian divorce. Non-disability retirement pay may be divided, and certain privileges and benefits may be retained by the former spouse. 

New Mexico Financial & Family Law can apply our years of experience and knowledge to your case. We assist our clients with understanding the law and making the optimal legal decisions for their given goals. Let us provide our client-focused service and attention to detail to your case. Schedule a no-obligation case review when you call us today at (505) 503-1637 or contact us online.

Military Disability Retirement Pay and Divorce

Some service members will be eligible to receive military disability retirement benefits if they have such a level of disability to the extent that they can no longer perform their duties. If they meet the creditable service criteria and other criteria, they will be placed on the disability retired list and may begin to draw military disability retirement pay.

This military disability retirement pay is ineligible for property division during a divorce settlement.

VA Disability Pay and Divorce

Qualifying service members who develop a disability or who make a current medical condition worse as a direct result of their service will be entitled to a portion of VA disability benefits, also known as “VA disability compensation.” The level of disability pay available depends on the service member’s disability rating, per the VA’s evaluation measures and standards.

In order to receive VA disability pay, a service member must waive a certain portion of their military retirement benefits.

Typically, any military retirement pay waived will be deducted from the amount awarded to the non-military spouse as part of a divorce decree.

Recovering Lost Military Retirement Pay

Military retirement pay is eligible for division and counts as community property during the divorce settlement process. The exact amount awarded will vary, but it generally only applies to the portion of military retirement benefits accrued during the marriage.

A divorcing couple can add a stipulation (rule) to the divorce decree that any military retirement pay voluntarily waived can still be recovered by the former spouse in other forms. This rule protects a former spouse from actions taken by the military service member after the divorce, which could eliminate a significant portion of their award.

In some cases, even without such an agreement in place, a former spouse can seek a court order from a court with jurisdiction in the case requiring the military service member to compensate their former spouse for the awarded amount.

Both the above type of agreement and recovery action can be subject to individual state laws, federal laws, and court decisions. Former spouses seeking recovery of military retirement benefits that are, in effect, no longer there can work with an experienced military divorce attorney to consider their options.

Military Disability Pay Garnishment for Non-Payment of Child Support and/or Spousal Support (Alimony)

It may be possible for a portion of military disability retirement benefits or VA disability compensation to be garnished. This can happen if a state court orders the military service member to set aside some of his compensation for the purposes of supporting their family using disability pay. This action is possible under Title 48.

To recover court-ordered spousal support or child support using disability pay garnishment, a former spouse must first obtain a state court order and only after seeking apportionment. The garnishment can’t be so significant that it would cause undue financial hardship, and the former spouse can’t currently be remarried or living with another person.

Seeking military disability garnishment can be complicated, as can protecting yourself against it as a former service member. Speak to an attorney experienced in military divorce law in order to understand more about your rights and available legal options.

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