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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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hawkcrewchief

Can My Disability Be Counted As Income For Divorce/child Support?

Question

I've done some research and read what the USC says on how no one can attach benefits to any hearing.

And I know the Supremacy Clause states that when state and federal law conflict federal law always wins. So how is it I'm being told I have to claim it as income, and it will be calculated into there crappy formula.... Please help!

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Well Brother some aren't going to like this post or the answer to it. The ANSWER is NO but the child in question is entitled to the bene's you receive on the child's behalf. if your 100% I think its 80 or 90 bucks. I myself just went through this little under 2 years ago, VA Disability can not be attached by anyone. How ever worse case scenario if you wife leaves or vice versa she will get no more than than half you SSA and the childs check from SSA PERIOD. I to am from Florida and I no how they work and they work to screw the father period. Everyone you will not be sympathetic to you because there first thought is you a dead beat DAD, you are not you are disabled and don't want to be left homeless and broke and FL will do that if you do not fight back. You give what your supposed to and no ore because at the end of the day you will be giving a lot. I currently give 600+ for one child you are not entitled to share your VA disability with others only SSA with your children. Get you a lawyer and you will find out what I say is trueand put that "your just trying to get over" crap out of your head that is what others are thinking. If she gets it its because you gave it to them or did nothing to protect your self. Not my business I suggest you guys work it out if possible...... Good luck hope this helps No State or local Gov can attach VA Bene's period. Been there say that got the tee shirt! Hope this helps.. Yogg

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That may be the case in FLA in some situations, but the answer to his overall question is, the judge will set an amount based on all income-and that means everything-not the IRS definition of income. Therefore the judge sets a number for maintenance and it is the other partners responsibility to come up with it from whatever sources are available. Legally they are not touching your disability directly, which they cannot do, but they can and will use that amount for spousal maintenance and/or child support.

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If you have a divorce coming up get a lawyer who does divorces for military retired. They know all the loopholes and fine points of the law. You know many retired generals who get divorced manage to get retirement converted to disability pay so they can drop the old bag and marry a pretty young thing.

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They (the judge) can COUNT your VA Benefits as "income", right along with your Lottery Winnings, the money you win at the Craps Tables, the money you make picking up aluminum cans alongside I-95 and your Social Security "earnings". And, they can set your child-support payments at whatever they want to, according to your children(s) needs.

Now, it IS true that they cannot "attach" your VA benefits. But, they can and will decide HOW MUCH is gonna come outta your bank account each month, for your children.

The ONLY entity that can grab your VA bennys is....................you guessed it......the same organization that wrote yer VA check..........the FEDS. They can, and will, get anything that you own, when it comes to payin' them!

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President Obama signs the Veterans' Benefits Act of 2010

The White House has announced that today President Barack Obama signed into law the Veterans' Benefits Act (VBA) of 2010. Among other improvements in the law for veterans, the VBA enhances the employee protections of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA protects service members from employment discrimination and retaliation on account of their service. It is particularly important for members of the reserves who face retaliation for their periodic absences from work, and their inability to schedule reserve duties around an employer's preferences.

The VBA amends USERRA, 38 U.S.C. § 4303(2), to make clear that employees are protected from discrimination in their wages and benefits. In 2002, the Eighth Circuit U.S. Court of Appeals held that USERRA exempted wages and benefits from protection against discrimination. Gagnon v. Sprint Corp., 284 F.3d 839, 852-53 (8th Cir. 2002).

VBA also adopts a multi-factor test to determine if a successor company is liable for the USERRA violations of a predecessor company. Too frequently, employers use a shell game of changing ownership to evade liability for their actions. The Department of Labor adopted a regulation to allow a wise look at all the circumstances to determine if the new company should be held liable for the previous company's violation. 20 C.F.R. § 1002.35. However, the Eleventh Circuit narrowed the application of this rule by requiring that there be a merger or a transfer of assets before successor liability can be imposed. Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1237 (11th Cir. 2005). Both Gagnon and Coffman are now ineffective as Congress has changed the law to specifically require the opposite result.

The VBA adds that the amendments "shall apply" to any violation of USERRA "that occurs before, on, or after the date of the enactment of this Act," and to all USERRA actions "that are pending on or after the date of the enactment of this Act." Congress is wising up to the ways courts resist applying remedial laws to accomplish their purposes. USERRA has been a harbinger of legislative refinements to anti-discrimination laws, and I look forward to Congress exercising this type of wisdom when it updates other employee protection laws.

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United States Code, Title 38, Section 5301, Non assignability and exempt status of benefits, reads in part;

Payment of benefits due or to become due under any law administered by the secretary shall not be assignable except to the extent specifically authorized by the law, and such payments made to, or on a account, of a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatsoever, either before or after receipt by the beneficiary.

It is my understanding that a veteran's service-connected disability compensation is intended to financially compensate a military veteran disabled in the line of duty. This compensation is not an asset or property and should not be used to calculate a veterans net worth. Disability compensation is awarded to a veteran that has lost some/all physical or mental ability to work, or maintain a daily routine. Veteran's disability compensation is tax exempt and is not classified "income" by the IRS. VA disability compensation is non-transferable and cannot be awarded to a third party under any legal process whatsoever. Even after the veteran has deposited these funds into their personal bank account they are federally protected from attachment or seizure. Disability compensation belongs solely to the disabled veteran that has suffered the disability and therefore should not be used to calculate income.VA monetary benefit entitlements with are generally based on either the veterans disability or wartime service from service-connected injury or disease. Compensation is generally not considered remuneration (payment) for employment.

However, the Social Security Act and the statutes governing benefit payment by the Department of Veterans Affairs do provide for processes by which dependents may obtain financial support from veterans' benefits under certain circumstances. Department of Veterans Affairs has issued regulations pursuant to 38 U.S.C. 5307 that provide for an apportionment of VA benefits between the veteran and his/her dependents under certain circumstances. VA regulations at 38 CFR Section 3.450(a)(1)(ii) provide that, if the veteran is not residing with his or her spouse, or if the veteran's children are not residing with the veteran and the veteran is not reasonably discharging his or her responsibility for the spouse's or children's support, all or any part of the veteran's pension, compensation, or emergency officers' retirement pay may be apportioned.

I would look for a organization call "Operation Firing for Effect" They are fighting to support Veterans rights and have been dealing with such cases. Their website is http://www.offe2008.org/. I hope that answers your question

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