click the logo to return to the homepage

 

 

 

After The War: A Nasty Battle at Home

How activist state judges violate Federal law by attaching veterans benefits for alimony (plus activist emails below)

by Bill Heino, Sr.

It is unfortunate that over a disabled veteran’s lifetime, they are often forced to fight another war in state divorce court. Many of these veterans, who willingly served their country, suffer physical and mental challenges as a result of their service to their country. Their VA disability compensation is supposed to be protected by federal law that prohibits attaching these benefits by any creditor or legal action. Unfortunately, many activist state court judges find a veterans protected VA disability compensation to be a divisible asset in a divorce settlement.

However, this is contrary to the findings in a minority of other states that find the laws to protect veterans disability compensation are quite clear. Those state find that federal law protects veterans disability compensation from attachment. The court judgments, and rulings from state to state are not uniform, or consistent with the rule of law. 38 USC 5301, “Nonassignnability and exempt status of benefits” tells us, VA disability compensation is protected from seizure, attachment, garnishment, or levy under any legal process whatsoever." 10 USC 1408, “Payment of retired or retainer pay in compliance with court orders“, does not grant state courts the power to treat as divisible property upon divorce, military retirement pay that has been waived to receive veterans’ disability benefits.

Veterans’ have gone to jail, spent thousands of dollars, much time and effort going to court pleading, and to find that nothing works! That is why, there must be some law somewhere to support 38 USC 5301. Researching, it may have been found. “Authority for schedule for rating disabilities.” 38 USC 1155, "..., in no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred.”

The VA disability rating schedule is tied directly to a specific dollar amount allotted and based on a veterans’ particular disability. The argument being, activist state court judges are overstepping those whose authority it belongs, in the practice of medicine, reevaluation, and rehabilitation of the disabled veteran. The state courts awarding, or seizing, of a veterans’ VA disability compensation as alimony, based not on ”the physicians rule”, but based on the judges lacking medical determination. Rulings, in what can only be described as capricious and arbitrary. In violation of the law, the law to practice medicine, and accomplished without the medical expertise, knowledge, prognosis skill, or medical license. Due Process demands the assurance that all applicable laws, that apply, against the taking of a veterans’ disability compensation.

Is this fight what returning disabled veterans from Iraq and Afghanistan are to expect? Come home to fight another battle?

USC, Title 38, Section 5301(a) - 1) Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
http://www.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00005301----000-.html

 

Subject: Re: Veterans Benefits

Hi Mr. Murphy,

Thank you for contacting me. I am forwarding this and my reply to Mr. Nolan. See his e-mail address above.

I trust you saw the press release

http://www.marysadvocates.org/eventsnews/holiday2008/holiday2008.html

In Ohio, there are divorce laws limiting the situations in which a court can include someone's benefits as gross income for purposes of calculating child support.

Do you know anyone in the VA who would make the following statements for people in Mr. Nolan's situation?

To Whom it Concerns:
A recipient of either a) VA disability pension benefits or b) aid and attendance benefits is not an employee of the Veteran’s Administration (VA).
These benefits (disability pension and aid and attendance) are government benefits in which recipient's eligibility is determined by his being disabled. The eligibility for these benefits or the amount of the benefit, or both, are determined on the basis of his income or resources. This financial assistance and eligibility are determined on the basis of income or assets.
The disability pension and aid and attendance distributed to recipient are “last resource” moneys intended to provide a minimum floor for beneficiary. Other income or benefits received by recipient, such as spousal support, would reduce the level of such payments of the benefits.
The VA disability pension and aid and attendance programs place a tax on earnings. Not a direct tax, after the fashion of the Internal Revenue Code, but an indirect one. Greater earnings yield less assistance. These particular VA benefits concentrated on persons with lower incomes or wealth.
Disability pension and aid and attendance are benefits in which the eligibility is determined by the existence of a disability. The eligibility or the amounts of such benefits, or both are determined on the basis of income, resources, or financial need.
Sincerely

----------------RELEVANT LAWS SHOWN HERE ---------

ORC § 3119.01 Calculation of child support obligation definitions.
(C)(7)(a) “Gross income” does not include: Benefits received from means-tested government administered programs, including Ohio works first; prevention, retention, and contingency; means-tested veterans’ benefits; supplemental security income; food stamps; disability financial assistance; or other assistance for which eligibility is determined on the basis of income or assets

ORC § 3119.06 Minimum Child Support Order.
Except as otherwise provided in this section, in any action in which a court issues or modifies a child support order or in any other proceeding in which a court determines the amount of child support to be paid pursuant to a child support order, the court shall issue a minimum child support order requiring the obligor to pay a minimum of fifty dollars a month. The court, in its discretion and in appropriate circumstances, may issue a minimum child support order requiring the obligor to pay less than fifty dollars a month or not requiring the obligor to pay an amount for support. The circumstances under which a court may issue such an order include the nonresidential parent’s medically verified or documented physical or mental disability or institutionalization in a facility for persons with a mental illness or any other circumstances considered appropriate by the court.

Where disabled father's only income was Supplemental Security Income (SSI), the trial court's order that he pay $ 50 a month child support was reversed and remanded because SSI was not considered as a part of gross income under RC ß 3119.01(C)(7)(a) and the court of common pleas' order to pay support under RC ß 3119.06 was an abuse of discretion. Morris v. Morris, 2003 Ohio 5598 (Oct. 16, 2003).

Ohio Administrative Code 5101:1-2-30 Citizenship: Ohio works first and disability financial assistance.
(B)(3) Definitions: “Federal means-tested public benefit” is a benefit in which eligibility for the benefit or the amount of the benefit, or both, is determined on the basis of income or resources of the assistance group seeking the benefit. Federal means-tested public benefits include food stamps (including the food assistance block grant programs in Puerto Rico, the Commonwealth of Northern Marianna Islands and American Samoa), OWF and supplemental security income (SSI).

The United States Court of Appeals for the Seventh Circuit has explained the meaning and operation of "means-tested" programs thusly: Means-tested public assistance programs place a tax on earnings. Not a direct tax, after the fashion of the Internal Revenue Code, but an indirect one. Greater earnings yield less assistance. This is what it means to say that a program is means-tested, with benefits concentrated on persons with lower incomes or wealth. Harbour v. Ridgeway, 2005-Ohio-2643. Citing Vaughn v. Sullivan, 83 F.3d 907 (7th Cir. 1996)

--------------------

On Dec 19, 2008, at 10:58 AM, Calvin Murphy wrote:

Hello,

My name is Calvin Murphy from bear lake, Mich. I wanted to contact Mr. Tim Nolan and let him know he is not alone in this matter. I belong to organization called Operation Firing For Effect, and we have over 40 veterans at this time who are fighting with courts. Several have been also jailed and I am one of them, we have amputee's who have been jailed and other veterans who are in hiding in other states to keep from being arrested for contempt of court. I will lose my home probally in the next year and I will go into hiding. We are trying to get this matter to Washington. We are hitting up all senators, Congressman, ect. We are being heard but it is slow. So if Mr. Nolan wants to contact me to find out more he can but he is to know he is not alone and we are fighting this.

Thank You,
Merry Christmas and Happy New Year

God Bless the American Veteran
Calvin Murphy
Viet Nam 66-67


Calvin Murphy
12851 13 Mile rd.
Bear Lake, Mich. 49614

1-231-362-2063

Bai Macfarlane
Mary's Advocates
http://www.marysadvocates.org

"Pray daily for the Roman Rota and for all who work in the sector of the administration of justice in the Church, with recourse to the motherly intercession of Mary Most Holy, Speculum iustitiae."
Pope Benedict XVI's Address Jan. 26 2008