Post on 25-Dec-2015
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V E T E R A N S ' B E N E F I T S
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VETERANS’ BENEFITS
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V E T E R A N S ' B E N E F I T S
Terry Symens-BucherSupervising Attorney
Alameda County DCSS
VETERANS’ BENEFITS
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Veterans' Benefits
Basic Eligibility for BenefitsTypes of BenefitsEnforcementDependents’ AllowancesGI Bill Educational BenefitsEstablishment & Modification
Overview
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Almost 22 million veterans in the U.S.
The VA annually awards more than $ 29 billion in disability benefits to millions of veterans.
As of June 2012 there was a backlog of 900,000 disability claims with the VA.
A growing number of cases…
August 2012Veterans' Benefits
Veterans' Benefits
Discharge from active military service (except dishonorable discharges)
Member of Army, Navy, Air Force, Marines and Coast Guard
Commissioned officer of: Public Health Service Environmental Science
Services Administration National Oceanic and
Atmospheric Administration(Predecessor: Coast and Geodetic Survey)
Basic Member Eligibility
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Veterans' Benefits
Spouse—Marriage certificate
Children—Birth certificates,
adoption papers, parentage judgment, paternity declaration
Basic Family Eligibility
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Veterans' Benefits
Retirement payDisability CompensationDisability PensionGI Bill/Educational benefits
Types of Veterans’ Benefits
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Veterans' Benefits
Paid by Department of Defense, not Department of Veterans Affairs
Based on rank and years of service at time of retirement
Can be used to calculate support
Is subject to withholding Serve IWO to Defense
Accounting and Finance Services (DFAS)
Retirement Pay
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Veterans' Benefits
Benefit paid for service-connected disability.
Varies with degree of disability and number of dependents.
Amount also affected by retirement pay, disability severance pay, other incentive payments.
Direct deposit, debit card, or check paid monthly.
Disability must be at least 30 % for children to be eligible for allowances (“derivative benefits”).
Disability Compensation
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Veterans' Benefits
Disability compensation is not subject to withholding.
Veteran can waive portion of taxable retirement pay in order to receive nontaxable disability.
Retirement pay is subject to withholding.
Disability compensation is subject to withholding equal to the amount of retirement waived.
Send IWO to Regional Office of the Department of Veterans Affairs.
Disability Compensation
v. Retirement pay
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Veterans' Benefits
None before being paid to veteran, unless it’s against the portion based upon waiver of retirement pay.
Once in veteran’s possession then the funds are subject to enforcement remedies.
Rose v. Rose (1987) 481 U.S. 619—affirmed veteran can be ordered in a contempt proceeding to pay child support out of disability compensation even though it is his sole source of income.
Enforcement against
Disability Compensation
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Veterans' Benefits
VA determines amount upon application by veteran or receiving claim from CP.
Veteran @ 30 % disability = $ 386; with one child = $ 420; two = $ 442; three = $ 464.
Veteran @ 90 % disability = $ 1661; with one child = $ 1754; two = $1823; three = $1892.
In the case of separation, the total would be allocated based upon the financial circumstances of the veteran and the family.
Dependents’ allowances
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Veterans' Benefits
Paid by Department of Veterans Affairs (VA).
NEEDS-BASED: therefore, probably not income for child support purposes. Family Code section 4058 (c).
Intended to provide relief to veterans with very low income.
Eligibility
Disability Pension
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Veterans' Benefits
Depends on Veteran’s family situation and caretaking needs.
Pension augments total income, including other retirement and Social Security.
Max annual rate w/o dependents: $ 11,830 With one dependent--$ 15,493 Each additional dependent—$ 2,020
Disability Pension
amounts
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Federal regulations allow for apportionment of all or any part of the pension and compensation payable on account of any veteran. 38 CFR 3.450
Criteria Children are not residing with
veteran Veteran is not reasonably
discharging his/her responsibility for child support
Special apportionment
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Write VA on LCSA letterhead signed by appropriate agency official and CP requesting apportionment review.
VA usually requires completed VA Form 21-0788 Information Regarding Apportionment of Beneficiary’s Award; www.va.gov/vaforms/.
Attach the support order and payment history.
How to request Special
Apportionment
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VA benefit amount being paid; Other resources and income
available to veteran and to children;
Special needs of veteran and his/her children;
Special needs of the claimant. Generally no more than 50 % & no
less than 20 % for any dependent. No apportionment where total
benefit does not permit payment of reasonable amount to anyone.
Factors in Special Apportionment
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Veterans' Benefits
Parent paying support gets dollar-for-dollar credit against child support obligation for any VA benefits received by the custodial person, unless VA benefits were considered when support was ordered.
Custodial person, upon notice, shall apply and cooperate with obtaining any benefits for which the child is eligible.
If the custodial person refuses to apply or fails to cooperate then credit shall be given as if the benefits were being received.
California Family Code
section 4504
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Veterans' Benefits
Call 1-800-827-1000. Identify veteran by SSN (VA file
number). Will state date of last
payment(s) and amounts. Derivatives stated after NP’s
amount. Will state how payment made--
check or direct deposit. Has option for widow, spouse,
and/or dependent payments.
Information on benefits
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Veterans' Benefits
Generally, veterans may receive up to 36 months entitlement under the Post-9/11 GI Bill.
Cost of tuition and fees paid directly to school.
Monthly housing allowance paid directly to veteran.
Annual stipend for books and supplies.
Education and Training Benefits
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Post-9/11 GI Bill Montgomery GI Bill—Selected
Reserve Reserve Educational Assistance
Program Veterans’ Educational Assistance
Program (VEAP) Veterans Retraining Assistance
Program (VRAP) Vocational Rehabilitation and
Employment VetSuccess Program
Types of educational
programs
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Monthly Housing Allowance (MHA) equal to basic allowance for housing (BAH) payable to an E-5 with dependents in the same zip code as the veteran.
2012 Average amount for all CONUS locations: $ 1,368.
Paid to veteran, probably direct deposit.
Non-taxable.
Post-9/11 GI BillEducational
Allowance
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Exempt from garnishment and other legal process.
MHA is paid proportionate to enrollment; i.e., full benefit paid if veteran is full time student.
No MHA paid if veteran attends school less than half time.
If the veteran is enrolled solely in distance learning then allowance is ½ full MHA.
Post-9/11 GI BillEducational
Allowance (cont’d)
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Con—no it is not Federal law rules. VA and IRS say it’s not income. It’s exempt and protected for
veteran’s use. It’s intended to support the
veteran readjust to civilian life. Pro—yes it is
Broad definition of FC section 4058.
Federal law does not pre-empt in this area.
Federal exemption law is not determinative.
The amount includes support for dependents.
Is it income for purposes of
calculating support?
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Fully paid tuition at any public Institution of Higher Learning (IHL).
Capped at $ 18,078 per academic year at any private or foreign IHL.
Paid directly to the school to reimburse tuition and fees.
Not subject to legal process or garnishment.
Tuition and fees
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Up to $ 1,000 paid annually for books and supplies based upon enrollment.
Paid to veteran. Non-taxable. Exempt from garnishment or
legal process (sovereign immunity).
Bank levy? Income for purposes of child
support? Lump sum?
Educational stipend
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Required findings for order: Ability to earn Opportunity to engage in
paid work Arguments to impute--
Primary responsibility is to provide for children’s needs.
Self-fulfillment, career goals, professional enhancement come after parental obligation is met.
Using Earning Capacity
instead of Veterans’ Benefits
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Mixture of actual & imputed income Don’t forget to consider this
third option which was used in Stewart v. Gomez.
Deviation from guideline In the appropriate case, once
the court has determined gross income, an argument may be made to deviate from guideline, either up or down, depending upon the circumstances of the case.
More Options
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Establishment-- Current situation will carry
significant weight. Difficult to argue to impute if
veteran has already engaged in educational program.
Modification scenarios-- Increase based upon
imputation Increase based upon
educational benefits Decrease based upon
decreased ability to pay
What is the status of your case?
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Veterans' Benefits
The best source of information can be your local/regional Veteran’s Affairs office or Outreach station.
The CP.Don’t forget to communicate and work with the veteran.
Got documents?
Conclusion: Good casework
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The best way to find yourself is to lose yourself in the service of others.
Mahatma Gandhi
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Questions?
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complete and print the MCLE Certification and Evaluation and fax it to:
916-446-1199
Thank You!
August 2012