When a service member is diagnosed with a service-connected disability, both the member and his or her family must cope with both the disability and its effects.
The families of US military personnel make many sacrifices to support the men and women of our armed forces. This may include multiple moves or extended periods of time apart. When a service member is diagnosed with a service-connected disability, both the member and his or her family must cope with both the disability and its effects. Many veterans receive disability benefits in the form of a cash payment every month. When service members and their spouses part ways, there are often questions about these disability payments.
Although the veteran’s disability benefits are part of a federal program, the way any disability benefit is allocated in a divorce is decided by the individual states. In Arizona, there are two very important things to know about veteran’s disability benefits that are awarded to a former service member under 10 U.S.C. §1413a or Chapter 11 of title 38 of the United States Code:
1. In Arizona, disability benefits accumulated during the marriage, are the veteran’s separate property. They are not an asset to be divided in a divorce. Some veterans are receiving both retirement pay and disability at the same time. Regular retirement pay is community; and,
2. The monthly payment for the disability benefit cannot be considered in any way for the purposes of awarding spousal maintenance.
If you are a veteran who is getting a divorce and you are receiving disability benefits pursuant to the federal law listed above, the court is absolutely prohibited from including the disability benefits as part of your income when considering whether you can afford to pay your soon-to-be-ex spousal maintenance. It’s as though that income doesn’t exist. This is not the rule in most states, but Arizona’s legislature took steps to protect this income from spousal maintenance claims in 2010 and 2014. See A.R.S. §25-530.
Note that this law only applies to spousal maintenance; the disability income may still be considered for the purposes of child support and attorney’s fees.
A lawyer handling a case where veteran’s disability benefits are involved must be extra careful about two things: documentation and details. The attorneys at The McCarthy Law Firm are not afraid to press for those items and will work to ensure that you understand these issues before settlement or trial.
This post is intended to highlight just certain portions of the Arizona Rules of Family Law Procedure. It is not intended to substitute for professional legal advice on your specific case. The McCarthy Law Firm is a family law firm; however please check with your personal family law attorney for advice specific to your case. Or you can contact our office to speak to one of our family law attorneys to discuss how these rules may impact your specific case.
