VA Benefits and Divorce in New York: What You Should Know

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People who serve in the United States Armed Forces are entitled to a variety of benefits through the U.S. Department of Veterans Affairs (VA), including pensions and other retirement income, health care, life insurance, and dependent and survivor benefits. In a divorce in the state of New York, certain VA benefits are treated as assets subject to equitable distribution. VA benefits may also constitute income to be considered in calculating child and spousal support. The divorce process can present concerns for both veterans and spouses of veterans, both of whom may worry about losing assets or income streams on which they depend.

The New York Times recently published a story by the former spouse of a National Guard member who deployed to Iraq and returned home with physical and psychological injuries. She describes helping him obtain assistance through the VA, and the ongoing treatments and tests that eventually resulted in diagnoses of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). Unfortunately, the two were not able to make the marriage work, and they divorced. The author states that she is lucky, since she has a job that provides benefits. Many military spouses who end up divorcing find themselves cut off from support from the VA.

Several types of VA benefits are particularly important in a divorce proceeding:

– Pensions:  Some veterans are eligible for tax-free retirement benefits.
– Life insurance:  The VA provides numerous life insurance options for veterans and their dependents.
– Health care:  The VA operates a large network of healthcare facilities, including hospitals and clinics.

The former spouse of a veteran may continue to be eligible for some VA benefits received during the marriage, but they lose eligibility if they remarry.

Some VA benefits may be subject to division in a divorce proceeding. The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows state courts to distribute military retirement benefits in a divorce case. The spouse of a veteran may be entitled to a portion of the retirement benefits accrued during the marriage, and the USFSPA provides a means of enforcing a court’s distribution of these benefits through the Department of Defense.

Disability benefits paid to a veteran by the VA are not subject to division in a divorce in New York. A New York court ruled in 2013, in Alvarado v. Alvarado, that a husband’s disability benefits from the VA and the Social Security Administration (SSA) were his separate property, and therefore they were not subject to equitable distribution in the divorce case. It cited multiple New York appellate court decisions that reached similar holdings. The court further ordered that the husband’s VA disability benefits, unlike his SSA benefits, could not be included in calculations of his ability to pay maintenance.

Other VA benefits may be considered as income by a New York court when calculating support payments. The definition of “income” includes “veterans benefits” for the purpose of child support, as stated in § 240(1-b)(b)(5)(iii)(E) of the New York Domestic Relations Law.

A divorce proceeding in New York can present a wide range of concerns and problems, and therefore it requires extensive and careful planning. In order to protect your assets and other interests, you should seek the assistance of a knowledgeable and experienced family law attorney to help you prepare your case. Ingrid Gherman has practiced in the area of family law, including property division matters, in New York City for the past 30 years. To schedule a confidential consultation to discuss your case, contact us today online or at (212) 941-0767.

Web Resources:

Summary of VA Benefits (PDF file), U.S. Department of Veterans Affairs, September 2012

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After Husband’s Death, New York Court Substitutes His Estate in Post-Divorce Proceeding, New York Divorce Attorney Blog, June 9, 2015

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