Reserving alimony when there’s military retirement

Posted Friday, November 22nd, 2013 by Gregory Forman
Filed under Equitable Distribution/Property Division, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

One of the quirks of family law is that a veteran’s military retirement is subject to equitable distribution but that veteran’s military disability is not.  South Carolina law treats military retirement as marital property. Tiffault v. Tiffault, 303 S.C. 391, 401 S.E.2d 157 (1991).  However a United States Supreme Court opinion forbids state courts from treating military disability as anything other than income to the disabled veteran. Mansell v. Mansell, 490 U.S. 581 (1989).

A retired veteran can seek a disability rating or an increase in his or her disability rating.  Obtaining a disability rating or an increase in that rating does not increase the amount of gross income received from the military but it shifts that income from retirement to disability.  For all veterans this has the advantage of increasing net income, as disability benefits are not subject to state or federal income taxes while retirement benefits are.  However, for divorced or divorcing veterans, this has the additional advantage of reducing the amount of benefits subject to equitable distribution.

Often the non military spouse does not need alimony at the time of the divorce, especially if that spouse can expect to receive a substantial portion of the veteran’s military retirement.  However an agreement or final order that seems fair when the veteran is solely receiving military retirement may become inequitable if that veteran later moves benefits from retirement to disability.

The way of protecting the non military spouse from the inequities of such a shift is by reserving alimony.  This assumes that the non military spouse is not barred from alimony due to his or her adultery.  It further cannot protect a non military spouse from this inequity if that spouse later remarries.  However having a provision in any separation agreement that reserves alimony if the military spouse seeks disability (or increased disability) offers some protection.  While Mansell prevents family courts from treating military disability as marital property subject to equitable distribution it does allow such disability to be treated as income in a consideration of alimony.

“Jurisdiction to award alimony may be reserved when there is a determination that there exists an identifiable set of circumstances that is likely to generate a need for alimony in the reasonably foreseeable future.”  Williamson v. Williamson, 311 S.C. 47, 426 S.E.2d 758, 760 (1993).  A military veteran shifting retirement to disability is such an “identifiable set of circumstances.”  Failing to seek a reservation of alimony when negotiating a separation agreement or trying a marital dissolution case on behalf of a non-military spouse may turn an agreement or order that was fair when executed into something inequitable if the military spouse later obtains disability.

2 thoughts on Reserving alimony when there’s military retirement

  1. William Heino Sr. says:

    State court violation Separation of Powers DISABLED VETERANS

    The issue is VA medical disability compensation, the property rights of the disabled veteran, in what VA medical doctors, medical professionals have determined a disabled veterans injuries should be compensated for. If, and when the question is a disabled veteran’s VA disability compensation as alimony/support, now that alimony reform has surfaced in many state legislatures, it’s time that disabled veterans voices be heard in a matter that has long concerned them. State court judges continue to ignore the disabled veteran, and the law, 38 USC 5301, 10 USC 1408. “Separation of powers” doctrine is mandated to end this attempt by the state court to manipulate, overlook, and circumvent the law and their disregard of disabled veterans.

    Disabled veteran’s, and the “separation of powers” doctrine, both overlooked, ignored, for years, by South Carolina and most state court judges, acting like doctors, holding themselves as qualified, as a provider of health care, policy making outside their jurisdiction. Substituting their judgment for the judgment of VA doctors and medical professionals, awarding as alimony, a disabled veteran’s earned VA disability compensation. Acting outside of constitutional boundaries of long held established VA medical protocols, in considering and re-evaluating a disabled veteran’s disability compensation in order to further degrade property rights of the disabled veteran, runs afoul of the “separation of powers” doctrine. Injurious, and an abuse of power to allow what is happening, was this the intent of Congress?

    South Carolina Code of Laws. Title 20 – Domestic Relations

    SECTION 20-3-130. Award of alimony and other allowances.
    (A) “In proceedings for divorce from the bonds of matrimony,…. the court may grant alimony or separate maintenance and support in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case may be just, pendente lite, and permanently.”
    B) “Alimony and separate maintenance and support awards may be granted … in such amounts and for periods of time subject to conditions as the court considers just including, but not limited to:.. ”
    (6) “Such other form of spousal support, under terms and conditions as the court may consider just, as appropriate under the circumstances without limitation to grant more than one form of support.”
    (C) “In making an award of alimony or separate maintenance and support, the court must consider … in such proportion as it finds appropriate to all of the following factors: “
    (13) “such other factors the court considers relevant.”

    PRICE V PRICE, 325 S.C. 379 (1996) 480 S.E.2d 92
    “….we recognize that Mansell does not permit a state court to treat military disability benefits as property subject to equitable distribution,….”

    While Mansell v. Mansell, 490 U.S. 581 (1989), “…prevents family courts from treating military disability as marital property subject to equitable distribution it does allow such disability to be treated as income in a consideration of alimony.”

    Realizing laws protecting VA disability compensation as exempt, the courts, therefore are unable, in any legal standing, to secure garnishment of veteran’s disability compensation. The court not satisfied, in a final move, will now consider, from any source, an equitable calculation of veteran’s resources, to include…. the very same disability compensation the court has acknowledged as exempt in determining alimony/support. Suggesting the use of a veteran’s disability compensation as alimony, or go to jail! As has happened. The mere mention, innuendo, or thought of VA disability compensation to satisfy indemnity obligations as a equitable consideration in any form, thought or calculation of VA disability compensation, suggests interference in matters, identified as exempt, are beyond the courts jurisdiction, under “separation of powers” doctrine. The court has the responsibility and the obligation to uphold the State Constitution’s “separation of powers” doctrine.

    South Carolina Constitution
    SECTION 8. Separation of powers.
    “In the government of this State, the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.”

    Forgotten are the rights of the disabled veterans. It is clear the court’s have no legal right to, exercise, determine, consider in any equitable calculation thereof, or divide federal VA disability benefits, in order to further enhance martial property. The improper, intrusive practice by state court judges in administration and governing over VA medical rehabilitative disability compensation. The separation of powers doctrine imposes the assumption that the state court, in attacking the disabled veterans legal right to claim as exempt, his or her VA disability compensation, requires subject matter jurisdiction. See SOUTH CAROLINA; Court of Appeals, Opinion No. 4043, Simmons v. Simmons (Social Security, Husband claims.. assignment of future Social Security benefits… is violative of the Act. Therefore, he argues.. family court lacked subject matter jurisdiction ..We reluctantly agree.” Ref 38 USC 5301). The court has the sworn duty and responsibility to enforce federal law. The court’s continued attempt to override VA administered rehabilitative services, of disability compensation is not within the courts purview, legal right or jurisdiction to invade.

    42 U.S. Code § 1983 – Civil action for deprivation of rights
    “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or ..causes to be subjected, any citizen of the United States …within the jurisdiction thereof to the deprivation of any rights, privileges,…secured by the Constitution and laws, shall be liable to the party injured in an action at law,.. or other proper proceeding for redress,..”

    The United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, ruled, “As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it,..” As well, South Carolina is not in any legal position to do so. Bush v. Schiavo, 885 So. 2d 321, (Fla. 2004). Despite the law, it continues.

    “It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law.” See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”

    14th Amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any State deprive any person of life, liberty, or property, with due process of law, ..”

    Which leaves the question, ANY alimony reform for disabled veterans when is that going to happen? Support for disabled veterans is all that is needed.

    William Heino Sr.

  2. Nevada Bedwell says:

    This is disgusting and you and your firm obviously have never served our country. You and your firm should be ashamed for even writing something like this. Our disabled veterans provide YOUR freedom to even write nonsense like this. Please do not call yourself a American. People that disrespect our veterans should really stop and look at themselves. Wow how inappropriate and just shows people why attorneys are at the bottom of the barrel in our society.

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