Child Support Obligations
Child support obligations arise from divorce. To our knowledge there is no such thing as a friendly or amicable divorce. If the couple are such good friends, why are they divorcing?
A few facts for you…
- Veterans must pay child support as it is ordered by the family court. Failure to do so may land the veteran in jail.
- Disabled veterans must pay child support. The total amount of the VA disability compensation check can and usually will be used in the financial statement to calculate the amount owed.
- Veterans disability payments may not be garnished. They may be apportioned by the VA and that amount apportioned may be given directly to the obligee. (Read more about apportionment.)
- Veterans disability money is not protected. Don’t pay attention to the Internet rumors. Pay attention to the family court.
Can a State Family Court use VA compensation as income to calculate a new monthly Child Support payment?
There seems to be some confusion regarding the answer to the above question. The information given within 5301 for short–can be confusing when trying to interpret it’s meaning and how it applies to Child Support situations.
Title 38 USC § 5301 – NONASSIGNABILITY AND EXEMPT STATUS OF BENEFITS
In plain English language, 5301 seems to tell us that there are almost no circumstances that anyone can collect (garnish) a veteran’s disability payment for any debt he might owe. It does say that any federal debt may be exempted (IRS, school loans, etc.) but that all other creditors are forbidden to demand any amount of the disability compensation money. This applies whether before or after it is received by the veteran. In other words, it can’t be garnished like a paycheck. Once it’s in the veterans hands it can’t be touched so long as it’s identified as money from a Department of Veterans Affairs (DVA) disability compensation payment.
Before we travel farther down the path of 5301, we should talk briefly about how federal laws are made. In a nutshell, a bill is introduced by a Congressional Representative that proposes a law. It passes before committees in the House and in the Senate and eventually finds its way to the desk of the President. Published in the Federal Register it then becomes law.
As it becomes law, the courts then apply it to everyday circumstances of the citizens they serve. The judge presiding in the courtroom must carefully read the law and then interpret what he believes to be the intent of Congress when the law was formulated. If you’ve followed legal matters you’ve read of the expressions of “the letter of the law” as opposed to “the intent of the law”.
To try to interpret law only by using the precise language or letter of the law is a mistake that far too many lay readers will make. Lawyers and judges understand that while the literal interpretation is important, the intent of the body of lawmakers is even more important.
In the examination of 5301 we must try to determine what the Congress intended at the moments the law was proposed and passed. Once a law is passed, the members of Congress will change, society at large will change and even the office of the president may see a new shift to the left or right. The law that was passed is still there, unchanged for years to come.
In sum, the courts are consistent in finding that the statute protects veterans from “creditors” and related “process” and “spouses” using “marital property laws” are not “creditors.”
In the case of a child support order, arguing the 5301 rule seems to be moot. While the DVA will not support garnishment or attachment of a disability compensation payment (arguing that DVA doesn’t want to become a collection agency for the children’s and family services divisions of every state) DVA will easily allow “apportionment” of that same money. For a custodial parent to apportion a sum of the disability compensation payment is a simple matter of writing a letter to the Regional Office that controls the veterans file and providing a copy of an order for child support and some financial information.
The veteran is then notified of the apportionment request and given the usual opportunities for appeal. Generally, the VA quickly defaults to the needs of the child and the custodial parent and begins to assign the requested amount within a short time. Once apportionment is established, that amount of money is forwarded directly to the custodial parent.
When a child support obligation is ordered in a state family court, the usual standard is that the money is delivered to the state agency of child support enforcement. Whether the money is to be withheld from paychecks or mailed in by the obligor, the money must be accounted for by the state agency responsible. Non-custodial parents are sometimes shocked to discover that cash given directly to children for special events, birthdays and the like, aren’t counted toward the child support obligation. If the state doesn’t track it officially, it didn’t happen.
In the case of the custodial parent who writes to the DVA asking for an apportionment, if that parent prevails, the DVA sends a check directly to the parent obligee. That money thus bypasses the state agency and isn’t accounted for. Then later, the state may notify the obligor parent to say that s/he hasn’t met the requirements and enforcement actions will occur soon.
It isn’t always that way though. The laws of the states have become harsh and unforgiving for the obligate parents because of the history of those who will stop at nothing to dodge their responsibilities. Over the last few years the pendulum has swung far over to the side of stiff requirements and rigid enforcement of family court orders. Magistrates and judges have almost no leeway in establishing the amounts of an obligation as they’re only allowed to use the data from a financial report to establish the numbers of the dollars owed each month.
Even divorcing spouses who want to make their own agreements are often not allowed to do so. The courts know that in months or years, these sorts of arrangements have little chance of lasting. Today’s family courts are overcrowded with couples who want to publicly argue the smallest details down to the nth degree. As the courts are becoming more crowded with shouting ex-spouses, they’re more disinclined to hear it and so they simply set the orders and then pass it on to the appropriate enforcement bodies. Some states today will only hear pleas for modification of family court orders every two years.
The bottom line is that for the foreseeable future, a veteran who has a child support or alimony order should not depend on the remote possibility that the 5301 law will offer any relief. Any veteran entering into a divorce should be represented by an experienced lawyer who will guide the veteran to a reasonable conclusion and an order than will likely be based on the payment of a DVA disability compensation amount as income