Skip to content 
Military divorce and disability present unique legal challenges in Texas, especially when it comes to dividing assets and calculating support. While military retirement benefits may be subject to division, disability pay is treated differently under both federal and state law. This distinction often leads to confusion and frustration, particularly when one spouse anticipates receiving a share of income that’s legally protected. Navigating this issue requires a clear understanding of how Texas courts view disability benefits in the context of divorce. By knowing the rules and working with experienced legal counsel, both parties can better protect their interests and avoid unexpected setbacks during the divorce process.
How Disability Issues Are Handled During a Military Divorce in Texas
Military divorce already brings a unique set of rules into the process. When disability benefits are part of the picture, things can become even more complicated. In Texas, divorce laws follow both state rules and federal military regulations. Veterans’ benefits, particularly disability pay, are treated differently than other assets.
Texas courts handle military divorces with specific attention to military pensions and healthcare. Disability benefits, though, follow their own set of rules, especially when it comes to property division, child support, and spousal maintenance. Veterans, service members, and their spouses need to understand how disability pay factors into each part of the divorce.
Is Disability Pay Divided in a Texas Military Divorce?
Texas is a community property state, which means that most assets acquired during the marriage are subject to division. However, disability benefits are not treated the same as other assets like retirement pay or real estate.
What the Law Says
Federal law protects disability compensation from being split during a divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), military retirement can be divided, but disability benefits cannot. This includes VA disability compensation and Combat-Related Special Compensation (CRSC).
If a military member waives part of their retirement to receive tax-free VA disability pay, the waived portion cannot be divided. This can reduce the amount a former spouse receives after divorce, especially if they were expecting a share of the full retirement pay.
How This Affects Spouses
Many spouses expect to receive a portion of military retirement. If the service member later switches part of it to disability pay, the spouse’s share shrinks. This shift often leads to disputes, especially if the change happens after the divorce is finalized.
Courts in Texas cannot force a service member to reimburse the spouse for the lost share of waived retirement. Spouses must consider this before finalizing divorce terms. Some attorneys may advise including clauses that address possible changes in benefits, though those clauses can be hard to enforce.
Disability Pay and Spousal Maintenance
Even though disability benefits are not divisible as community property, they can still affect spousal maintenance. Texas courts may consider all income sources, including disability pay, when deciding on spousal support.
What the Court Can Do
Judges in Texas can use VA disability compensation to calculate how much a veteran can afford to pay in spousal maintenance. If the veteran receives only disability income, the court can still award spousal maintenance, but it must balance both parties’ financial situations.
If the disabled veteran has limited income and high medical costs, they might argue that spousal maintenance would cause undue hardship. Still, the court’s goal is to provide fairness, especially if the non-military spouse sacrificed career opportunities during the marriage.
:
When the Veteran Is the Spouse Requesting Support
In some cases, the veteran is the one seeking spousal maintenance. If their disability prevents them from working, they might qualify for support, especially if their former spouse has greater earning potential. Texas courts review several factors, including length of the marriage, health, education, and ability to earn income.
Child Support and Disability Benefits
Unlike property division, child support laws in Texas treat disability pay as income. That means VA disability compensation counts when calculating support.
How It’s Calculated
Texas uses income guidelines to determine child support. VA disability benefits get counted in that income. Even though they are tax-free, they still represent financial resources available to the parent.
The Texas Attorney General’s office considers both VA compensation and any military retirement pay that’s not waived. If a veteran receives additional money for dependent children as part of their VA award, the court factors that in.
What Happens When the Veteran Receives Additional Child Benefits
Sometimes, VA benefits include extra funds for dependent children. If a veteran receives this and is the non-custodial parent, they might be entitled to a credit against their child support obligation. This prevents double payment and helps balance the obligation fairly.
Garnishment of VA Benefits
In some cases, VA disability pay can be garnished to cover child support. This happens only under specific rules. If a veteran has waived retirement pay to receive VA compensation, and that retirement pay could have been divided in divorce, then some garnishment may apply. The VA follows strict criteria and will not approve garnishment that causes undue hardship to the veteran.
How Disability Ratings Affect Divorce Proceedings
The VA assigns disability ratings in 10% increments, based on the severity of the veteran’s service-connected condition. These ratings influence the amount of compensation the veteran receives. They can also play a role in divorce proceedings.
Higher Ratings May Lead to Higher Support Payments
If a veteran receives a high rating, their monthly compensation increases. That means their income, on paper, is higher. Courts can consider this income when deciding on support. A 100% disabled veteran might have substantial monthly benefits, which affects support expectations.
On the other hand, a low disability rating brings a smaller monthly payment. Veterans with low ratings and no other income sources may struggle to meet spousal or child support obligations.
Total and Permanent Disability
Veterans with a 100% permanent and total disability may also qualify for additional state and federal benefits. These could include property tax exemptions, education benefits for dependents, or healthcare. These perks can influence the court’s view of a party’s financial standing. Even though courts won’t divide those benefits, they might consider the veteran’s overall stability.
Survivor Benefits and Divorce
During divorce, the question of post-death benefits sometimes comes up. Veterans or their spouses may ask about benefits that continue after one spouse passes away. The most common of these is the Survivor Benefit Plan (SBP).
The SBP and Divorce Settlements
The Survivor Benefit Plan allows a retired military member to provide income to a beneficiary after death. If the divorce agreement includes SBP coverage, the spouse must be listed as the “former spouse beneficiary” within one year. This must be filed correctly with the Defense Finance and Accounting Service (DFAS), or the benefit could be lost.
Disability compensation does not pass to former spouses. Once the veteran dies, VA disability benefits stop. Courts cannot grant future payments to a former spouse from VA compensation. This makes the SBP an important part of financial planning during a military divorce.
Legal Representation and VA Benefits
Not all attorneys understand how military benefits work in a divorce. Veterans and their spouses should choose lawyers familiar with both Texas family law and military regulations. Lawyers should know how VA disability interacts with retirement, how to handle SBP designations, and what to expect with spousal maintenance and child support when disability pay is involved.
Key Points to Discuss with a Lawyer
- How VA disability affects retirement division
- What happens if a spouse waives retirement for disability
- How child support and spousal support are calculated
- Whether to include SBP coverage in the decree
- How to protect both parties in case of future benefit changes
Final Thoughts
Military divorce and disability in Texas involve a complex intersection of state and federal laws that require careful attention. When disability benefits are part of the equation, the rules become even more nuanced. While VA disability pay cannot be divided as marital property, it can significantly influence decisions regarding child support and spousal maintenance. Veterans and their spouses must understand how different benefit ratings and retirement changes may impact the outcome of their divorce. Legal guidance from professionals experienced in both military and family law is essential. By fully understanding how Texas courts handle disability benefits, you can make informed decisions and protect your financial future throughout the divorce process.
FAQs: Military Divorce and Disability
No, a wife does not automatically receive 50% of a veteran’s VA disability pension in a divorce. VA disability payments are typically exempt from being divided as marital property.
In a military divorce, the division of military retirement pay, spousal support, and child custody are considered, often in accordance with the Uniformed Services Former Spouses Protection Act (USFSPA).
The duration for which an ex-wife receives a portion of military retirement depends on the terms set in the divorce decree and is usually related to the length of the marriage overlapping with military service.
VA disability benefits are not divided in a divorce as marital property but may influence alimony and child support calculations.
The wife of a 100% disabled veteran may receive certain benefits depending on various factors like the duration of the marriage, but she does not receive VA disability payments directly.
Other Related Articles:
- Is Military Disability Pay a Marital Asset?
- Can I Keep My Military ID Card After a Divorce?
- Which military branch has the highest divorce rate?
- Do Military Spouses Get Alimony?
- Preparation can help you get through a military divorce
- Can My Ex Get Half of My VA Disability? (And Other Military Divorce Questions)
- Disability Issues in Texas Child Support
- Military Disability Pay in a Texas Divorce Case
- Will Your Child Be Able to Receive Social Security Disability Insurance and Child Support After a Divorce?
- A Daring Lie: Shameless Disability Claims To The V.A
