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Dec 16 08 8:23 PM
Dec 16 08 8:31 PM
Dec 16 08 9:13 PM
Not anymore. I found that about 6 months ago and showed a copy to my wife, just in case.
Disclaimer: on the advice of Counsel, all my writings are fictions. While some events may be true, others will be unverifiable.
Dec 17 08 12:50 AM
Dec 17 08 12:05 PM
Jere Beery, press release, Firebase Atlanta, 10/12/05. "In a totally unexpected and surprising development
this week, the ex-Mrs. Jere Beery filed papers with Coweta County Superior Court, in Newnan Georgia releasing Mr. Jere Beery from any court ordered
alimony payments. According to Mrs. Beery, her attorney and a Georgia Superior Court Judge were wrong to target Mr. Beery's VA disability
compensation to calculate alimony. "My husband earned his VA disability compensation in combat 17 years before we were married. He earned that
disability compensation with his blood. We have no children together and I am not entitled to any of his VA money," Mrs. Beery said in a recent
Although, asking for help from several national VSO's, with their expertise, Jere Beery was denied the help
he was seeking. Everybody, who you would think that was able, and in the position to help, even his own lawyers, failed him. Two VSO's, however,
the DAV, and the PVA had voiced their support, as did the many veterans, and independent veterans organizations.
This 'about face' by Judge Keeble, all came about because, individual veterans sticking together, when
seeing something obviously wrong, against the law, and interested in helping other veterans, with focus, determination, researched the law, case law,
digging in. They keep at it. Not knowing, you may not come up with, or find anything, but then again, as we have found out,.. you will be surprised
what you will find, two(2) counties over, i.e., Warren v. Warren, Muscogee County Georgia 1981, denying alimony garnishment award of veterans'
disability benefits. Beery's own lawyers, could not do, what veteran's who decided this judge, is not going to get away with
"trashing" veterans law, and VA disability rights.
A violation of the law, is a violation of the law. It didn't take much to research the 'other side'
of the issue, the law, if you are interested. If these VSO's were interested, they may have resolved the issue in Beery's favor, long ago. Jere
Beery, by vocalizing the issue, stuck with his belief, and in the end, giving encouragement, making it just a little bit better for all veteran's,
including members of VSO's, such as the American Legion.
Jere Beery did not give up. We cannot afford to give up.
For complete information http://jerebeery.com/press_releases_page.htm
This is not the only decision but the fastest 1 I could find. I have read regulations as early as 2007 that did not allow alimony to be paid from VA
compensation. Military retirement pay is up for grabs.
Dec 17 08 12:13 PM
In Ex Parte Burson, 615 S.W.2d 192 (Tex. 1981), the veteran had, after the court awarded part of his military retired pay to his former spouse as a
property division, waived his retired pay to receive VA compensation. The court held that the divorce decree could not prohibit the veteran from making the
election to receive exempt disability compensation as permitted by Federal law and that Federal law preempted the courts from requiring the veteran to satisfy
the award to the spouse out of his compensation. The court said that "Federal preemption of veterans benefits for disability does not leave room for their
defeat, either by implication or indirection."
A New Mexico court, in Miller v. Miller, 96 N.M. 497, 498, 632 P.2d 732, 733 (1981), followed Texas law (because the retired pay was earned in
Texas) that veterans' benefits received in lieu of the retired pay through a waiver are not divisible or assignable as community property. However, the
Miller court, without addressing the exemption in § 5301, held that alimony could properly be awarded, even though the source of funds for its payment
was disability compensation. Miller, 96 N.M. at 499, 632 P.2d at 734. The court held that such award of alimony was authorized by the Child Support
Enforcement Act, codified at 42 U.S.C. §§ 659-662.
A California court held in Costo v. Costo, 156 Cal. Rptr. 85, 156 Cal. App. 3d 781 (1984) that VA benefits are exempt from division as community
property. In addition to citing § 5301 (then § 3101) for the proposition that veterans' benefits are exempt, the court relied on a provision in USFSPA,
codified at 10 U.S.C. §1408(a)(4)(B), which excludes from "disposable retired pay" subject to division as marital property amounts waived to receive
VA compensation. The court held that "a state court may not treat the portion of appellant's military retirement waived in order to receive
veterans' benefits as community property subject to division."
A Pennsylvania court, in Parker v. Parker, 335 Pa. Super. 348, 351-52, 484 A.2d 168, 169-70 (1984), held that the exemption in § 5301 (then § 3101)
does not apply against a wife seeking alimony pendente lite (temporary alimony pending divorce and a possible award of permanent alimony) because the wife is
not a creditor and the claim for alimony is not a debt. The Court said: "Suffice it to say, 38 USCA § 3101(a) does not preclude consideration of these
benefits by the court as a source of income coincident to appellant's ability to pay and upon which an award of alimony pendente lite may, in the
particular circumstances of the case, be based." Id.
The veteran had also argued that a provision in CSEA (since amended) barred awarding alimony from his veterans' benefits. The provision he relied on
excluded VA compensation from monies that were subject to alimony payments. The court held that while it may be true that this provision excluded veterans'
compensation from the waiver of sovereign immunity that consents to garnishment of Federal agencies, "nothing here persuades us that these benefits cannot
be considered in determining the amount of the award." Id. at 353-54, 484 A.2d at 170-71.
Louisiana has held, despite § 5301 which provides an exemption for veterans' benefits, and despite the USFSPA provision, 10 U.S.C. 1408(a)(4)(B), that
excludes from property division and alimony amounts of retired pay waived to receive disability compensation, that veterans' compensation received in lieu
of military retired pay is property for purposes of division of marital assets under Louisiana's community property laws. Campbell v. Campbell,
474 So.2d 1339 (1985). This goes far beyond what other courts have held, because they have recognized that spouses and others have no property interest in
veterans' benefits. If other states were to take this holding seriously and follow it, the result could be that veterans' disability compensation would
routinely go in the pockets of ex-spouses rather than disabled veterans. Unlike spousal support, fault of the parties or financial need are not factors in the
division of marital property. It would make no difference if the marriage terminated because of the spouse's adultery or willful abandonment of the
disabled veteran. In community property states, a veteran's former spouse might automatically receive 50% of the veteran's future compensation for the
remainder of the veteran's or spouse's life. It would not matter that the veteran's sole source of income is disability compensation, nor that the
spouse is fully employed, is much better off financially, and has no need for a half of the veteran's disability compensation. The spouse would continue to
receive half of the veteran's compensation even after remarriage. The community property concept is not founded on the common law principle that there is a
moral obligation to support a spouse and dependent children, but rather on the business relationship that exists between the husband and his wife for their
mutual economic benefit. In non-community property, or equitable distribution, states, the result might be similar or even worse: a spouse might receive more
than half of the veteran's disability compensation if the court deemed it appropriate.
A Vermont court has held that § 5301 does not preclude consideration of veterans' disability compensation as a source of income from which to award
alimony. Repash v. Repash, 528 A.2d 744, 745 (Vt. 1987). The veteran also argued that § 1408(a)(4)(B) provided protection to his compensation. The
court, in noting that the veteran's compensation was not received by virtue of a waiver of retired pay and in holding that this provision in USFSPA only
exempts compensation when it is received in lieu of retirement pay, demonstrates one absurd contradiction that arises from the courts' treatment of these
laws. A veteran who receives VA disability compensation without a waiver of retired pay has no protection while a veteran, merely because he or she receives
the same compensation through a waiver of retired pay, is protected (or was protected before the most recent amendment to CSEA), at least from actions awarding
support under USFSPA.
Shortly thereafter the Supreme Court, in Rose v. Rose, 481 U.S. 619 (1987), held that (1) VA authority to apportion disability compensation was not
intended to vest VA with exclusive authority over awards of compensation for child support, (2) that § 5301 does not preempt state courts' jurisdiction
over compensation and does not protect veterans' disability compensation from seizure to pay court-ordered support, and (3) that the provision in CSEA, 42
U.S.C. § 659(a), that exempted veterans' benefits only exempted them from garnishment, not court orders for support. Regarding the effect of § 5301, the
Court in Rose essentially rewrote the law to suit the outcome it thought desirable. In his dissent, Justice White observed: "the order that
appellant pay over a portion of his veterans' disability benefits on pain of contempt constitutes a "seizure" of benefits. The plain language of
§ 3101(a) prohibits any seizure of veterans' benefits, but the Court ignores that prohibition and creates an exception out of whole cloth."
Rose, 481 U.S. at 645. In an earlier decision, the Supreme Court reached the opposite conclusion about the identical language. Wissner v.
Wissner, 338 U.S. 655, 659-60 (1950). In Wissner, the court held that a judgment which ordered the diversion of future veterans' benefits to
another as soon as they were paid constituted a seizure contrary to the same provisions now in § 5301. Id. Similarly, in Ridgway v. Ridgway,
454 U.S. 46, 60-61(1981), the Supreme Court again rejected arguments that the intent of the "anti-attachment statute" (in that case another VA
statute with the same language as § 5301) was only to protect veterans' benefits from creditors. The court, citing the language of statute, said of that
Here are a few more. The one I referred to was actually for the state of Missouri, but I beleive there are enough federal cases that have been found in favor
of the Veteran to weigh on behalf of the Vet.
Dec 17 08 2:06 PM
VA DISABILITY & DIVORCE: United States Code, Title 38, Veteran's Benefits, is the governing document created by the U.S. Congress for
the administration and protection of benefits, entitlements, and healthcare services earned by persons honorably discharged from the U.S. military, spouses,
dependents, and widows of former military personnel. The Department of Veterans Affairs is the sole agency responsible for enforcement and interpretation of
the contents of USC, Title 38. According to the Department of Justice, the ultimate responsibility for all actions taken/or not taken under USC, Title 38 falls
squarely on the shoulders of the Secretary of the Department of Veterans Affairs. One of the primary functions of USC, Title 38 is to insure persons not
eligible for veterans' benefits, entitlements, compensation, and/or medical services are not granted access to such, and veterans receiving benefits,
entitlements, compensation, and/or medical services are qualified and eligible to receive said benefits. In the case of veteran's disability compensation,
these funds are paid solely to the disabled veteran for injuries incurred in the line of duty. Disability compensation is tax-exempt and not classified as
'income' by the IRS. VA disability compensation is also protected from seizure, attachment, garnishment, or levy under any legal process whatsoever.
USC, Title 38 reads, "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. www.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00005301----000-.html". In spite of this very focused
and explicate language, every day in civil court rooms across the country disabled veterans are being forced to use their earned disability compensation as a
divisible asset in a divorce settlement, or go to jail for contempt. In a blatant violation of USC, Title 38, most family court attorneys and civil court
judges have wrongly concluded that the federal law does not apply to them or their court proceedings. Nothing could be farther from the truth. Contrary to the
opinions of some, there is no gray area here. When the federal law states; 'under any legal or equitable process whatever, either before or after receipt
by the beneficiary', that means exactly that. USC, Title 38 makes NO exception for civil court rulings. Operation Firing For Effect (OFFE) is currently
monitoring over 40 cases nationwide where severely disabled veterans are being ordered to use their earned disability compensation to pay alimony or spousal
support to a non-military able body ex-spouse. In a number of these cases the disabled veteran has spent months in jail for refusing to give up their
disability compensation to a third party. Operation Firing For Effect (OFFE) is a veteran's advocacy group devoted to the improvement and protection of
benefits and entitlements earned by our men and women in uniform.
Although USC, Title 38 is extremely clear about the protection of disability compensation, the Department of Veterans Affairs refuses to enforce the laws
outlined in Title 38. This inaction by the VA leaves the veteran with no other recourse but to pay the court order or go to jail. OFFE is currently warning
active duty personnel (man, or woman) of the waiting ambush they face if they should fall victim to an ugly divorce upon returning home. OFFE is recommending
all military personnel consider filing a premarital/prenuptial agreement designed specifically to protect veterans' benefits from consideration as a
divisible asset in a divorce. OFFE is also exploring the possibility of filing a class-action suit against the Department of Veterans Affairs for failure to
enforce the federal statues that protect veteran's benefits from third party awards. The Department of Veterans Affairs has an obligation to our veterans
to protect their benefits and entitlements from abuse and theft. For more information on this issue, refer to http://jerebeery.com/5301%20Club.htm . To view a
video on this subject refer to http://www.youtube.com/watch?v=9FAjR-QbhPw . [Source: OFFE Release 55 dtd 11 Dec 08
Dec 17 08 5:50 PM
Dec 17 08 6:53 PM
Dec 22 08 2:36 AM
VA disability compensation is also protected from seizure, attachment, garnishment, or levy under any legal process whatsoever.
Now my ? is. A person has 90 days to use/get rid of Va compensation for disabilities before it can be garnished out of a bank account. Would this apply here?
Jan 8 10 5:52 PM
Good reading for Texas Vets. Linked to case
On May 1, 2009, the Texas Supreme Court ruled on another case of this nature, Hagen v. Hagen, in which the divorce decree granted the non-military
spouse a portion of "all Army Retirement Pay or Military Retirement Pay" that the service member might receive. The decree did not mention
Veteran's Administration disability benefits or contemplate that the former husband's military retirement pay would be reduced if the husband became
disabled and opted to receive Veteran's Administration disability benefits in lieu of military retirement pay. Accordingly, the Court upheld the reduction
in payments to the ex-wife caused by the ex-husband's decision to accept Veteran's Administration disability benefits.
Jan 12 10 2:32 PM
Jan 12 10 3:51 PM
Here's an interesting link. Page down to the bottom regarding spousal support and see how they handle disability. http://www.divorcesupport.com/divorce/Division-of-Military-and-Veteran-s-Disability-3095.html
As Cruiser points out, it all derpends on the State and how they determine what is and what is not included. Brings to mind a great point that was made many
years ago by some brilliant law professor: "The law is only the law when it is what is determined to be the law in YOUR case." I might not have the
saying exact but it's fundamentally correct. No matter how many law points there are, what the judge says in your case is what makes your case specific
and meaningful to you. Might not apply or be right or specific to anyone else, and they might really suck to the next-to-be divorced standing in the gallery,
but it's the way it works.
Never get a man-hater for a divorce judge. Had a case deferred three times just for that reason...whew. Talk about dodging not a bullet but a 155!
Feb 5 10 7:09 PM
Feb 5 10 10:48 PM
Does not play well With others.
Feb 6 10 7:41 PM
My lawyer is not familiar with the Federal laws dealing with VA compensation. .Thanks,rnoller
Feb 6 10 8:21 PM
Feb 14 10 2:28 AM
Can anyone help me. I am 100% disability and getting a divorce in Texas. My lawyer is not familiar with the Federal laws dealing with VA compensation. I received my disability 25 years ago. I married 9 years ago. My concerns are dealing with community and separate property. If my disability is separate property than our assets will be divide differently. It will not be a 50-50 split on our assets since I bought most of our personal property (furniture, rental property, etc.) with this disability compensation. My husband is asking for 50% of all assets. So I really would like an answer dealing with the division of assets that were acquired during marriage with the 100% disability.Thanks,rnoller
Feb 16 10 9:25 AM
Feb 16 10 6:59 PM
Feb 22 10 9:08 PM
Let’s try this! The law which you consider supreme over any other in enforcing 38 USC 5301? “…and shall not be liable to attachments, levy, or service by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”
How for decades the Veterans Administration, in processing State court orders, administratively garnish a veterans’ disability compensation as alimony. In doing so, refer to VA guidelines that supersede and override the linchpin of the Constitution, “The Supremacy Clause, Article VI of the United States Constitution. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Yes, this you know. However! The key word here is, “notwithstanding” which means, in spite of, despite. “[N]otwithstanding” also appears where State courts go to direct the VA by court order, the consent to enforcement and justify the taking of your, as well as thousands upon thousands veterans’ disability compensation as alimony awards. Using that exact same word, and then reference 5301 in order to make it quite clear any such waiver is not possible. “Notwithstanding” is found in Title 42 USC 659. “Consent by the United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations.”
Briefly; 42 USC 659(a) Consent to enforcement.
Nothwithstanding any other provision of law (including section 407 of this title and section 5301 of title 38)…moneys.. due from, or payable by, the United States…to any individual, including members of the Armed Forces of the United States, shall be subject…to withholding in accordance with State law…to enforce the legal obligation of the individual to provide child support or alimony.”
(h)(V) By the Secretary of Veterans Affairs as compensation for a service-connected disability paid by the Secretary to a former member of the Armed Forces who is receipt of retired or retainer pay if the former member has waived a portion of the retired or retainer pay in order to receive such compensation.”
I went to a law professor looking for an answer to this question. I asked, I think I know the answer, however, I cannot pinpoint it to any particular reference of law other than the Supremacy Clause of Article VI of the United States Constitution. I would like your opinion on the Article VI “notwithstanding” and the use of “Notwithstanding any other provision of law ” found elsewhere in the United States Code.”. I would think Article VI prevails, would you agree? He replied, “Yes, the US Constitution always trumps any other form of law. “
Here, your question is, or should be, which is it going to be? Either the United States Constitution Article VI “notwithstanding” or the 42 USC 659 administrative law “notwithstanding”? Here… there is the legal certainty. Which is it going to be?
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