Will justices review how states treat vets’ disability
May 17, 2012
by Tom Philpott
A disabled veteran has asked the U.S.
Supreme Court to consider anew whether states violate federal law when
they allow divorce courts to count a veteran’s disability
compensation in calculating spousal support.
The petition also invites the justices
to consider an issue that states are more sharply divided over: whether
federal law bars state courts from considering VA disability benefits
communal property to be divided in divorce like other marital
In dissolving the near 20-year marriage
of Peter James Barclay, an Air Force veteran, and his wife Claudia Kay,
an Oregon district court judge in 2010 considered the value of
Peter’s VA disability payments in awarding spousal pay of $1000
a month. His only income is VA benefits and Social Security Disability
Insurance, a tax-free total of just over $4400 a month.
Barclay, 42, suffers from
post-traumatic stress from his role as a Tinker Air Force Base
first-responder to the 1995 bombing of the federal building in Oklahoma
City. Barclay cleared debris and helped in recovery the dead and
wounded. In time, PTSD made him unemployable and eligible to draw VA
compensation at the 100-percent disabled rate.
Barclay argued at trial that to include
his disability pay in calculating spousal support would violate federal
law. The court ignored that argument and the Court of Appeals of Oregon
affirmed its decision.
His Washington D.C. attorney, Michael
D.J. Eisenberg, this month petitioned the Supreme Court to consider
whether Title 38 U.S. Code, Section 5301(a), which makes VA disability
benefits immune "from taxation, claims of creditors, attachment,
levy and seizure,"doesn’t also bar
inclusion of disability pay, directly or indirectly, in spousal support
"We have two good reasons to be heard before the
court,"Eisenberg said in an interview. "One is the fact
that the states are ignoring federal law. And two, states are split on
how they are executing federal law."
The petition concedes that most states
have adopted the approach used in Oregon, that disability pay can be
used toward alimony. This is based on the Supreme Court’s
1987 Rose decision, which said the legislative history of VA
disability benefits shows that these payments are intended to compensate
both the veteran "and his family."
Eisenberg disagrees. Disability pay, he
said, is to compensate the veteran for loss of income due to a
service-connected medical condition. If the veteran has a spouse, VA
compensation tables set payments higher. But that extra amount, in
recognition of the sacrifice the spouse makes in living with a disabled
vet, stops if veteran gets divorced. That means the spouse has no direct
claim on the compensation.
"It’s not like
the veteran’s disability caused the spouse a
military-related disability,"Eisenberg said. If
a former spouse has no disability, she "has an advantage
over the veteran"that the Oregon court should have considered and
not try, using VA compensation, to "even the playing
field."Doing that gives the former spouse an advantage over the
veteran, he said.
spouse claims to have disabilities of her own. But Eisenberg said relief
should come from state or federal assistance program like Social
Security Disability Insurance, not the veteran’s
Eisenberg acknowledged that a Supreme
Court ruling in favor of Barclay would not be a happy result for many
former spouses of veterans.
"But let us not forget these VA benefits are to make
persons whole for loss of either physical or mental disability incurred
while they are serving their country. The spouse is deemed to have no
disabilities, certainly no disabilities from military
service…There’s nothing in
the record to reflect she can’t go out and
get a job."
Barclay and his former spouse are in
the early 40s. He is a veteran but not a military retiree. She worked at
home throughout their marriage, raising children who are now
The 1982 Uniformed Services Former
Spouses Protection Act (USFSPA) allows courts to distribute "disposable"military retired
pay as marital property or as alimony or child support. But
Barclay’s petition notes that the law also excludes disability
compensation from the definition of "net disposable
income"that can be divided under the USFSPA.
The petition also points to the Supreme
Court’s 1989 Mansell decision in favor of a retiree
who sought to reduce his spousal support when he won a disability award
from the VA. When the retiree began drawing VA benefits, it lowered his
military retirement being shared with the ex-spouse.
Despite the harmful impact on former
spouses, the court said it had to follow the "plain and precise
meaning"of the USFSPA. Justice Sandra Day O’Connor, now
retired, dissented, writing that the majority was allowing VA disability
compensation to warp the protections of the USFSPA.
cites O’Connor dissent to point out that Congress
hasn’t chosen to amend the USFSPA to address her concern. That
means Congress still wants disability benefits protected from spousal
support calculations, at least for military retirees, Eisenberg
Arizona recently passed a law shielding
veterans’disability benefits from alimony calculations.
Barclay’s petition refers to two other states in which VA
disability benefits paid in lieu of retirement (Texas) are not subject
to division as property or to alimony calculations (Vermont.)
A prominent attorney on military family
law, Marshal Willick of Las Vegas, has written extensively on
veterans’disability pay and spousal rights. In fact, when
we spoke by phone Wednesday, a small group of veterans angered by his
writings had just ended a protest rally outside his law office. The
group, Operation Firing for Effect, tracks how state courts treat VA
disability benefits and lobby state legislatures to shield those
Willick said every state except Arizona
allows veteran benefits to be included in calculating spousal or child
support payments based on Rose decision that disability pay
was intended to support a veteran’s family and
not exclusively the veteran. He agreed states are more evenly split on
whether disability pay can be divided as marital property.
Eisenberg agues it’s time the
court addressed the states’"various
interpretations"and clarified the law in favor of his client and
other disabled veterans. At least four justices would have to agree a
review is merited.
Willick expects the petition to be
denied without comment.
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