Kenya N. Rahmaan
Veterans of the United States Armed Forces are people that should be celebrated and supported in an effort to show appreciation for their time-in-service. Unfortunately, that is not the reality for our soldiers as they return home and must often fight many non-combat battles. Homelessness, mental health issues and unemployment often plague veterans as they transition from military to civilian life. Along with these difficulties of adjustments are debt-related issues such as spousal and child support obligations. Based on federal law, veteran’s benefits should not be garnished, but, regrettably, this law is not always honored in veteran child support cases.
According to the American Bar Associate or ABA (2011), under U.S.C. §5301 (a) (1), benefits paid by the Department of Veterans Affairs (VA) are not subject to levy, seizure, or attachment. Since child support money is deducted through an order of garnishment, VA benefits should be excluded from such collections. This is not always the outcome when decisions concerning child and spousal support are being argued in favor of the custodial parent. We, as Americans, see again that certain rules and laws apply to certain individuals and in certain situations. These rules and laws seem to be used more when they are used to shelter those that need little protection and attack the most vulnerable. Laws should always protect veteran benefits and should not be used as a convenience to those that the government deem worthy of protection.
One key reason that allows the government’s ability to garnish veteran’s benefits is that ‘family’ support and ‘child’ support have been decided to mean exactly the same thing as far as deductions are concerned. Even though a veteran’s disability benefits are compensation for the veteran, certain courts have forced the vet to satisfy debts accrued due to family obligations. A veteran can be held in contempt of court and jailed if he/she fails to pay support even if their disability is proven to be their only form of income. This is because the disability compensation somehow belongs to other people besides the person that sacrificed life for country. According to the ABA (2011), in the case of Rose v. Rose (1981), the Supreme Court held that neither the Veteran’s Benefits provision of Title 38 nor the garnishment provisions of The Child Support Enforcement Act of Title 42 indicate unequivocally that a veteran’s disability benefits are provided solely for the veteran’s support.
This ruling and others that are similar, cross a very thin line as to who is entitled to a veterans’ benefits after that individual has been harmed during duty. Disability compensation, as defined by the U.S. Department of Veterans Affairs, is a tax-free monetary benefit paid to veterans with disabilities that are a result of disease or injury incurred or aggravated during active military service. That should mean that disability money is paid for the sole purpose of caring for the needs of the veteran. If there is a need, other money should be set aside to care for children similar to the system practiced by the Social Security Administration. Based on the legal definition, there is no mention of the veteran being required to share the compensation payment nor is there a mention of who may be entitled to receive money from the disability payment. The seizing of money paid to compensate a person for pain and suffering should not be available for garnishment or offset in order to satisfy a debt.
Another underhanded manner in which the federal government is able to garnish allegedly exempt veteran compensation is by invoking a clause listed in Section §3.750-1, the Retired Military section of the Code of Federal Regulations (C.F.R.). Military retired pay is payment received by a veteran that is classified as retired by the Service Department. There are many areas included under this umbrella of employers, including the Armed Forces and the National Oceanic and Atmospheric Administration, but the same rules apply when garnishments or deductions are attached to payments. The retirement money and disability compensation can be received concurrently and in full in certain situations.
According to Cornell University (2009), a veteran who is entitled to military retired pay and disability compensation for a service-connected disability rated 50% or more, or has a combination of service-connected disabilities, is entitled to receive both payments. This entitlement is subject to phase-in periods. The phase-in period is a 10-year period in which military retirement pay was increased 10% each year until the recipient began receiving full military retirement pay (Ryan Guina, 2014). A veteran may be awarded both forms of payment after 20 years of service and in compliance with Chapter 61 of Title 10 of the U.S. Code. In all other situations, veterans receiving both retirement pay and disability compensation must file a waiver to receive full benefits. This waiver is required, as explained by the Department of Veterans Affairs (2009), if the veteran’s disability retired pay exceeds the amount of retired pay that the veteran would have received based on length of service. The money that is waived is subject to garnishment.
While it is somewhat true that the money is, and should be, considered disability compensation, the money in question has raised serious doubts as to its real exemption status. On one hand, the money should be considered disability as it pertains to providing income to a soldier who was injured during his or her service. This money should not be considered retirement money. Under this premise, these benefits are specifically exempt by federal law of child support withholdings, (Bureau of Fiscal Services, 2005). The federal government has even found a way to ignore this law and garnish these protected benefits. There have been several cases over the years that contradict the federal law and have granted garnishment orders against a veteran’s supposed protected income. According to the ABA (2011), child support may be awarded based on disability payments to either parent being considered as income. There are no mentions of retirement waivers or phase-in periods. Even though the federal law prohibits veteran disability money from being touched, veterans are still having their money withheld.
One reason that has been provided by the court system is that federal law does not prohibit treating child support obligor’s veteran administration disability benefits as income under support guidelines, (ABA, 2011). Again, the federal statute clearly states that child support withholdings cannot be deducted from these specific benefits. The statutory exemption, 38 U.S.C. § 5301(a), was not considered when the Supreme Court held that a father was forced to be forced to pay child support from his disability compensation. The justification provided by the US Supreme Court was that the benefits were intended to support not only the veteran but the veteran’s family as well, (ABA, 2011). It seems as if the rules and laws are meant to be followed except when it comes to the state and federal governments and how officials collect money from citizens.
It is quite insulting that one government agency exempts a certain form of income from offsets, while another agency bypasses the statute in order to steal money from our wounded veterans. Many veterans rely on their disability compensation as their only source of income. This does not deter the judges from attaching garnishment orders to that money. Again, in the case of Rose vs. Rose, the law was altered in order to abide by the laws of garnishing disability benefits. The Montana Supreme Court ruled that none of the garnishment provisions of The Child Support Act of Title 42 preempt the authority of state courts to enforce a child support order against a veteran, (ABA, 2011). This directly violated the garnishment rule mandated by 38 U.S.C. Furthermore, the court ruled that the child support can be enforced even where the veteran’s income is composed of VA disability benefits, (ABA, 2011). This money is supposed to provide disabled veterans some financial stability as they battle life after service. It was not meant to be returned to the federal government as free money.
Homeless veterans face a more difficult time when dealing with child support issues. One way these vets receive some type of assistance with child support and other issues is by offering Stand Down Events. These events are hosed by several organizations and a number of resources to the most brave Americans One of the most important of these resources, along with health screening, food and shelter, is the legal counseling provided to homeless vets. Child support issues are covered in these counseling sessions. According to Administration for Children & Families or ACF (2012), about half of the states have more than 10,000 veterans in their child support caseload. The government being permitted to garnish the compensation money could mean the difference between having a home and becoming or remaining homeless.
It has already been established that veterans face an array of barriers in addition to those faced by non-veteran non-custodial parents. In addition to the difficulty of finding employment and earning low-incomes, veterans are older than other parents, they are more likely to have an interstate case and they are more likely to have higher child support arrears, (ACF, 2012). When dealing with arrears, a majority of the money owed is comprised of interest, late fees, penalties, and court fees. If and when the disability money is garnished, as with any payment received for child support, the state will deduct money owed to it before disbursing any money to the families. This is money that could be used to assist the disabled veteran and his or her children.
The states have no right to, first, disobey the federal law and garnish untouchable money and second, retain the money so that no family member benefits from the garnishment. There is very little being done to help our heroes deal the child support obligations when they cannot afford the payments. The three day Stand Down events may help temporarily but there is no information detailing the long-term success or failures of these events. Counties boast about distributing pamphlets to parents or reviewing case files, but there are little remedies available to assist veteran parents dig themselves out of their deep financial graves. Child support obligations not only hurt financially, but it can have a negative impact on one’s mental well-being. Child support debt can also be a psychological barriers to reestablishing family relationships, (ACF, 2012). Couple this with other mental illnesses often suffered by veterans such as post-traumatic stress disorder or depression, the end results are bound to be disastrous.
The government must be held accountable for disobeying its own laws. By taking money paid to compensate injuries suffered under the threat of death in order to satisfy an often exaggerated debt is akin to stealing benefits from 9/11 survivors to cover debt that accrued after they responded to the terrorist attack. These people deserve every medal, every honor, and every dollar earned during their commitment to our country. If more money is needed to support children of veterans, the federal government should provide that money.
The federal government has already declared this money exempt from liens, seizures and attachments so states should not be permitted to loophole itself into the bank accounts of our disable veterans. As this country fights for reform to the child support system, we must consider our brave women and men who have been promised compensation if injured during service to the country. The US must restore that promise, and it must start by enforcing the statutory exemption 38 U.S.C. Until we force a change in child support guidelines, we must force the government to, at least, abide by the laws that are already established. It is time to starting to start treating our veterans, disabled, and otherwise, with the respect that they truly deserve when they return home.
Administration for Children & Families. (2012, November). Child support participation in stand down events | Office of child support enforcement | Administration for children and families. Retrieved from http://www.acf.hhs.gov/programs/css/resource/child-support-participation-in-stand-down-events
American Bar Association. (2011, September). Fact sheet-V.A. payments and family support. Retrieved from http://www.americanbar.org/…/201109_flmc_vapayments.pdf
Bureau of Fiscal Services. (2005, March). Treasury offset program. Retrieved from https://www.fms.treas.gov/…/dmexmpt.pdf
Concurrent receipt rules – Concurrent retirement disability pay (CRDP). (2014, March 4). Retrieved from http://themilitarywallet.com/concurrent-receipt-military-retirement-pay/
Cornell University Law School. (2009, April 5). 38 CFR 3.750 – Entitlement to concurrent receipt of military retired pay and disability compensation. | LII / Legal Information Institute. Retrieved from http://www.law.cornell.edu/cfr/text/38/3.750
U.S. Department of Veterans Affairs. (n.d.). Compensation home. Retrieved from http://www.benefits.va.gov/compensation/