Question:
I am not currently receiving military disability but it is at the board awaiting final approval. When filling out the divorce papers, my spouse asked me about my disability payments from the military. Do I have to legally disclose this amount when a decision is reached as I was told that I do not have to tell anyone what it is?
Answer:
First let me preface my answer by stating that I am licensed to practice law in Oklahoma and not licensed to practice law in Minnesota, so I am unable to give you any specific advice regarding your question because I am not familiar with Minnesota statues and rules. However, I can give you a general response to your question, although for specific advice you need to speak to an attorney licensed in Minnesota.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows states to treat “disposable” military retirement pay as marital property. Meaning the Court may award a portion not greater than 50% of a service member’s retirement to the non-service member spouse in a divorce. It is then left to the individual states’ laws to determine if and how said disposable military retirement may be divided. This rule may impact the division of your military disability.
As you may already know, in order for you to receive VA or military disability you will have to waive a portion of your military retirement. The argument could be made that because you are being forced to waive a portion of your military retirement your spouse should be entitled to a portion of your disability income. However, the United States Supreme Court has held that state courts cannot treat veteran’s or military disability income as marital or community property. Meaning that under the current law, these benefits should be yours and yours alone and may not be divided in a divorce. Nevertheless, depending on your state’s laws, a state court may consider your disability income as a factor in dividing the assets and debts of the marital estate.
Also, there is no federal law preventing a state court from considering disability income for purposes of determining alimony and/or child support. The amounts you receive from veteran’s or military disability may be included in your figures to determine your monthly income and used in computing any sources for alimony and/or child support. This will depend on your states laws regarding computation of income.
Therefore, the Court may require you to disclose the amount of your disability benefit to the Court and your wife. The specific laws regarding computation of income or sources for alimony and child support vary from state to state and I would urge you to speak with an attorney familiar with Minnesota’s laws on the subject.
Bradley K. Cunningham is a Senior Attorney in the Tulsa, Oklahoma office of Cordell & Cordell P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Cunningham is licensed in the states of Oklahoma and Texas. After growing up in Tulsa, Mr. Cunningham moved to Arkansas where he received his undergraduate degree in Accounting from Harding University in Searcy, Arkansas. He then returned to Oklahoma and received his Juris Doctor from the University of Oklahoma.
