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V E T E R A N S ' B E N E F I T S

Send your questions and comments to:

CSDATraining@CSDACA.ORG

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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Submit questions and comments to: CSDATraining@csdaca.org

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CSDAEvents@csdaca.org After completing the training,

complete and print the MCLE Certification and Evaluation and fax it to:

916-446-1199

Thank You!

August 2012