Divorce and Military Retirement Benefits in Alabama

V.A. MILITARY DISABILITY BENEFITS AND DIVORCE, ALIMONY AND CHILD SUPPORT

Military disability benefits from the V.A. get varied treatment in terms of alimony, child support, and contempt for failure to pay in Alabama divorce courts.

V.A. MILITARY DISABILITY BENEFITS CANNOT BE USED IN CALCULATING ALIMONY

V.A. military disability benefits may not be considered when determining the amount of alimony to be paid in a divorce. In a recent Alabama Court of Civil Appeals opinion, Goldman v. Goldman # 2140488, the Court of Civil Appeals followed the holding in Ex parte Billeck, 777 So. 2d 105 (Ala. 2000), concluding that federal law prevented trial courts from considering the benefits as income when deciding the proper amount of a monthly alimony payment. The decisions in Alabama follow the United States Supreme Court decision in Mansell v. Mansell, 490 U.S. 581 (1989) which held that the federal law regarding military disability benefits preempted a state’s community property laws.

V.A. MILITARY DISABILITY BENEFITS CAN BE USED IN SETTING CHILD SUPPORT AMOUNT

In Goldman, the Court of Civil Appeals also addressed the use of the benefit to calculate child support. The Court held that, under the 1987 U.S. Supreme Court opinion in Rose v. Rose, 481 U.S. 619 (1987), a trial court can include a veteran’s military disability benefits as income when calculating the amount of child support under the Alabama Child Support Guidelines.

V.A. MILITARY DISABILITY BENEFITS CAN BE CONSIDERED IN MATTERS OF ALIMONY ARREARAGE

In addition, taking a narrow reading of Ex parte Billeck, the Court of Appeals held that a trial court could also consider military disability benefits in matters related to the ability to pay an arrearage of alimony or the calculation of the appropriate amount of arrearage payments needed to cure the alimony arrearage.

It should be noted that this opinion deals with Military disability benefits, as opposed to the broader issue of military retirement in general. In very general terms, military retirement benefits may be considered income for purposes of alimony, child support, and ability to pay. It is important to determine the type of benefit. Veterans with a disability may offset their regular retirement benefits with the amount of their V.A. disability benefits, significantly reducing the amount of income that may be taken into consideration when determining the amount of alimony.

If you are a veteran going through a divorce, or if you spouse of a veteran in a divorce situation, it is highly advised that you seek a consultation of an Alabama divorce attorney to determine the impact of the divorce on your military benefits.