'Judges have ignored the law and calculated veterans' disability into divorce settlements'
'Judges have ignored the law and calculated veterans' disability into
By Glenn Sacks, MA for Fathers & Families | Apr 10, 2009
Typical of our family court system--disabled veterans are being forced to
pay alimony from their disability benefits. From a new report from KWQC TV
in Davenport, Iowa:
When a soldier suffers a life altering injury in combat, they receive
disability benefits from the government. Those benefits are supposed to be
only for the wounded soldier, but in some cases that's not happening.
A federal law states a disabled veteran's benefits cannot be used as
divisible assets during bankruptcy, in a divorce and for child support. But
a group founded to make sure that doesn't happen, says some state judges
aren't paying any attention to the law.
"She wasn't disabled, she was an able bodied, non-military person," says
Jere Beery who works for the veterans advocacy group, Operation Firing For
Effect. He joined the group after a judge ruled Beery had to give a portion
of his disability benefits to his ex-wife. He adds, "My wife never had to
take the medications I had to take, she doesn't have the disfiguring scars I
have, she doesn't wake up in the middle of the night with strange noises."
The Vietnam Veteran refused to pay and filed complaints. Eventually his
wife said she didn't want the benefits anymore. But it got Beery involved in
helping others fight the same battle he did. "Keep in mind we're talking
about the most severely disabled veterans from combat situations, we're
talking about wounds, IED, brain trauma, amputees, bed ridden veterans,"
according to Beery.
And it's just not men, it's also disabled female veterans experiencing
these problems when they get divorced or declare bankruptcy. Gene Simes,
National Chairman of Operation Firing for Effect, says he's worked with
veterans all over the country and it boils down to judges aren't educated
about disabled veterans rights. Simes say, "When a judge tells you, you have
rights, no constitutional rights that judge is violating the rules of this
nation and what he is set to be. He is just as guilty if he was a crook
Once a judge makes their ruling, there's really nothing that can be done
other than to violate the order. So their goal is to make sure judges
understand what it means to be a disabled veteran. "They've gotten away with
it for so many years and used so many bad rulings as reference cases it's a
ways of life in the judicial system," adds Beery.
The group is monitoring 40 cases all over the country of judges
mishandling disability benefits...
In California, Senator Rod Wright, with help from Michael Robinson of the
California Alliance for Families and Children and Dennis Egge, President of
the American Retiree Association, is sponsoring a bill to address the
situation. SB 285 will uphold existing federal law--USC, Title 38, Section
5301, which governs third party disbursement of disabled veterans' benefits
compensation. According to Robinson:
Although United States Code, Title 38, Section 5301 is very clear in its
wording and intent, civil court judges nationwide have routinely ignored the
U.S. Code and have calculated veterans' disability compensation into divorce
settlements as a divisible asset or income.
And it's just not men; it's also disabled female veterans experiencing
these problems when they get divorced or declare bankruptcy.
To watch a video of the KWQC TV report:
1) Click here
2) Click here and scroll ahead to 1:05:00.
[quote=Dusty;507378'Judges have ignored the law and calculated veterans' disability into divorce settlements'[QUOTE]
Perhaps this… the protection of VA disability from alimony?
38 USC 5301 is the protection of VA disability compensation against alimony awards to third parties. Although they contribute to the problem, state court judges, lawyers, and state legislators see only what they want to see. Make judgments according to precedent, the easy route, “stare decisis”, Rose v. Rose, and their misrepresentation of Administrative law, 42 USC 659. Helping this process along is the Veterans Administration policy. Rubber stamping each state court garnishment order without thought or questioning. Disregarding the rules of Compliance With Process procedure. “The governmental entity shall comply with legal process, except where the process cannot be complied with because: ..” The “because” to all this follows.
General counsel Department of Veterans Affairs before the House Committee on Veterans Affairs. Mr. Thompson speaking on the subject at hand states , “The sole exception is that VA compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.”
Mr. Thompson continues, “VA benefits, including even disability compensation received in lieu of retired pay, are also protected by Federal law from court-ordered divisions of property upon veterans’ divorces. However, The United States Supreme Court ruled in Rose v. Rose 481 U.S. 6219(1987) that state courts are not precluded from setting child support obligations at such levels that veterans would necessarily have to use some of their disability compensation to meet them.”
VA compensation can be garnished only if two (2) conditions exist, to satisfy court ordered, (1) child support and (2) alimony obligations. The “sole exception” Not one(1), but two(2) conditions.
“The interpretation of the General Counsel on legal matters, contained in such opinions, is conclusive as to all VA officials and employees, not only in the matter at issue, but also in future adjudications and appeals involving the same legal issues, in the absence of a change in controlling statute or regulation or a superseding written legal opinion of the General Counsel.”
“VA monetary benefits, entitlement to which is generally based on either the veteran’s disability and wartime service (pension) or disability from service-connected injury or disease (compensation), is generally not considered remuneration for employment.”
42 USC Section 659. Consent by United States to income withholding,… for enforcement of child support and alimony obligations. Reading further on, worded as, “(i)(5)(B), to provide child support or make alimony payments”, “(e) child support or alimony”. Why child support or alimony? To cover all conditions of a veteran’s activity, such circumstances in retirement or employment, in order to carry out court ordered alimony judgments in garnishing retirement payments, military pay, assets, etc., classified and based ….as remuneration for employment. “Remuneration” conditions having absolutely nothing to do with a veterans’ disability compensation. A disabled veteran, having no child support issues, is receiving disability compensation not based on remuneration for employment, therefore not subject to garnishment.
“The test to determine if a payment is subject to garnishment is whether the payment is remuneration for employment as defined in section 459 [42 U.S.C. 659(a) and (h).“You will see that in 659 (V) they are talking about retired or retainer pay where “..the entitlement to which is based upon remuneration for employment”
“(h) Moneys subject to process
(1) In general
Subject to paragraph (2), moneys payable to an individual which are considered to be based upon remuneration for employment, for purposes of this section -
(V) by the Secretary of Veterans Affairs as compensation for a service-connected disability paid by the Secretary to a former member of the Armed Forces who is in receipt of retired or retainer pay if the former member has waived a portion of the retired or retainer pay in order to receive such compensation;..”
TITLE 5--ADMINISTRATIVE PERSONNEL CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT PART 581
_PROCESSING GARNISHMENT ORDERS FOR CHILD SUPPORT AND/OR ALIMONY --
Honoring legal process.
(a) The governmental entity shall comply with legal process, except where the process cannot be complied with because:
(2) The legal process would require the withholding of funds not deemed moneys due from, or payable by, the United States as remuneration for employment;
What have these laws taught us? That disability compensation is not.. retired or retainer pay. Therefore not.. remuneration for employment compensation. That the VA’s mandate ignores compliance with its legal process, and illegally continue to complying, and processing state court ordered judgments outside the guidelines of federal law.
You can argue these points with the state court, hoping that they will be persuaded. If not, the garnishment process goes forward. The only thing now is to, writing a formal letter, bringing this to the attention of the VA , the federal financial department, that is responsible for following up on garnishment orders from a state court.
If adjudication of state court orders is disregarded by formal documentation by the VA, now is the time to file a “notice of disagreement” (NOD) with the VA. Most likely they will reply denying your claim. Your next step is the courts. First filing an appeal by the Board of Veterans Appeals (BVA) where they will, because they work for the VA, also rule against you. The next step would be the United States Federal Court of Appeals for Veterans’ Claims, who do not work for the VA. This court does not argue against what has been the ruling, but instead look for violations of federal statutes, or laws.
If there is no “child support” issue, in a case where federal laws have been violated, if you have never done this, as I found it in another matter, it is fairly easy, almost simple, adhering to the reasonable time limitations. The problem is, it takes a long time, first in one court and then the next. But in order to resolve this issue you have to start.
[QUOTE the protection of VA disability from alimony?[/quote]
More on the subject. Because, my reply cannot be limited, this will be in two parts.
Part (1) “Clear and substantial” major damage to federal interests.
There is “clear and substantial” major damage to federal interests when state court judges make lasting decisions that seriously impact and complicate the Veterans Administration goals. Upsetting, by overruling the medical decisions, and the many hours of work that VA medical care professionals have invested in rehabilitation of disabled veterans, all this when a state court arbitrarily is allowed to take away a veterans VA disability compensation in third party alimony awards in violation of…..
38 USC 5301. Nonassignability and exempt status of benefits, and….
38 USC 1155 “Authority for schedule for rating disabilities.
Now, “.. an argument may be, is that the veteran's disability rating has not actually been downgraded. No one has actually decreased the VA predetermined rating. In this situation, the judge is merely apportioning it after the fact.”
This maybe true, however, based on the fact because the rating and compensation are directly tied to each other. Sure the rating may have not gone down, but to a veteran his disability compensation payments is contingent upon what VA medical professionals determined the disabled veteran should be compensated for, forgetting for the moment, any rating system. To the veteran who loses any portion of his compensation payments, he considers his rating has been downgraded. Because, now his VA rating is meaningless. After all, a veterans health and well being are now in jeopardy. A “ cause and effect” situation. We just have to stop this nonsense that’s happening in state courts.
Which brings up the question, how can state court judges in violating, 38 USC 5301, 42 USC 1408, arbitrarily award as alimony, a portion of a veteran’s VA disability rated compensation, and waive away, by reviewing the disability rights of veteran whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same. State court judges, playing doctor, border on medical negligence, overstepping those whose authority it belongs, in the practice of medicine, re-evaluation, and rehabilitation of the veteran, and VA medical professionals. In direct violation of 38 USC 1155, “Authority for schedule for rating disabilities.” "..., [i]n no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred.” Reduced readjustment in a rating schedule, in the taking away money’s used for the recovery and rehabilitation of disabled veterans, and handing it over to a healthy third party. Was it the intent of Congress that judges substitute their judgment for the judgment of VA medical professionals?
I now wondered, if state court judges are allowed to take away a veteran’s disability compensation without a medical license, or medical knowledge? How does the Board of Veterans Appeals, who are continually faced with determining a veteran’s disability compensation, or other medical claim, adjudicate these medical questions?
§ 20.101 Rule 101. Jurisdiction of the Board.
“…Medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board's jurisdiction….”
Even the Social Security Administration… has medical evidence standards they must follow.
42 USC 423 “In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual’s treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis.”
State court judges in awarding a veterans’ VA disability compensation as ‘income’ in a divorce, show an indifference to veterans’ and their serious medical needs. The deliberate intrusion by state courts into federal issues and laws, ruling arbitrarily by awarding VA disability compensation to a third party is unwarranted. They are required to obtain advisory medical opinion from medical experts, just as required by the Board of Veterans’ Appeals (BVA), and as well, as in all other civil litigation.
Part (2) “Clear and substantial” major damage to federal interests.
Judges, rule arbitrarily that they have the right to award VA disability compensation to third parties. The right to play doctor. Because of this, these judges have taken on the responsibilities of a medical doctor, and ruled as a doctor. Contrary to the veteran’s reliance on 38 USC 5301, and because of the disability of the veteran, they have, by their judicial proceedings determined the disabled veteran is incapable of caring for his or her own interests. Due to a veterans’ disability, and their authority as judge in ruling, awarding of VA disability compensation to third parties. The reality is, the state court judge has taken on another responsibility, and became the veterans’ legal guardian, his “ward”. Another disabled veterans’ right, that of being able handle his or her own rehabilitation now has been taken away .
The legal recommendation of the VA’s own General Council in medical determinations, and questions, that are beyond the knowledge of those not in the medical field.
38 CFR 20.901 Rule 901. Medical opinions and opinions of the General Counsel.
“(d) Independent medical expert opinions. When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more medical experts who are not employees of the Department of Veterans Affairs. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made by the Secretary of Veterans Affairs. An appropriate official of the institution will select the individual expert, or experts, to give an opinion.” (Authority: 38 U.S.C. 7109)
VA Can’t Base Denial on its Own Medical Judgment Colvin v. Derwinski, 1 Vet. App. 171 (1991) “Colvin stands for a now deeply embedded and fundamental principle of veterans law—the VA may use only independent medical evidence to support its benefits decisions. The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision”
“…before a state law governing domestic relations will be overridden, it "must do ‘major damage' to `clear and substantial' federal interests."
“Clear and substantial” major damage to federal interests occurs when, in attaching, or “considering” for any reason, the VA rated disability compensation benefits of disabled veterans by judges practicing in a field where they have no expertise. The expertise that VA doctors, and VA healthcare professionals are required to have in order to determine the appropriate medical procedures, and the proper disability compensation payment in order to rehabilitate, with a medical degree of certainty, that would ensure a disabled veteran return to a healthy meaningful outlook, and enjoyment of life, and independence in daily living.
“Clear and substantial” major damage to federal interests occurs. When the work of the primary medical care provided by Veterans Administration medical teams to disabled veterans’ has been compromised by activist state court judges. Readjusting the VA’s predetermined medical disability payment rating schedules, by court order to lower VA payout levels. Attaching these just acquired disability compensation benefit payments as alimony awards, by judges practicing in a field where they have no business practicing. Doctors do not attempt to practice law. The expertise and knowledge of VA doctors, and VA healthcare professionals are required in order to determine the appropriate medical care, and disability payment compensation in order to rehabilitate, with a medical degree of certainty, that would ensure a disabled veteran return to a healthy meaningful outlook, and enjoyment of life, and independence in daily living.
“In no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred.”
As described, it is overtly clear that disabled veterans “fundamental rights” through state court action, violate many federal laws to protect the veteran, i.e., 38 USC 5301, 38 USC 1155, 42 USC 1408, 42 USC 659. Finally, 42 USC 1983, “Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State.. subjects, or causes to be subjected, any citizen of the United States… deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, … or other proper proceeding for redress,..”
Major damage “clear and substantial” to disabled veterans. There are two ways to stop this.
(1) Challenging state court judges as to their misguided belief that their knowledge of law qualifies them to practice in the field of medicine, of which they have no knowledge, by overruling VA disability compensation decisions. Court rulings that lack the requisite expertise to draw conclusions that test the assessment, evaluation ,and reasonableness of the weight given by VA doctors and medical professionals in allocating proper VA disability compensation payment levels.
(2) Write to Secretary of Veterans Affairs to question those VA policies that are in violation of federal law which ignores compliance to a legal process which serves to protect the interests of the disabled veteran. Sec. 5301.“Nonassign- ability and exempt status of benefits.” Questioning why the VA continues to approve rubber stamping illegal state court ordered judgments, to reapportion, and therefore reduce a disabled veterans VA compensation payments in violation of federal law for alimony purposes, by a state court judge playing doctor? 4 USC 581.305 (c) “…the governmental entity shall inform the party who caused the legal process to be served, or the party's representative, that the legal process will not be honored.”
Most likely this will be turned down by the Secretary. Now, you are on your way to the Federal Court of Appeals for Veterans Claims. Your next step you will file a Notice of Disagreement (NOD) with the Secretary. The VA will deny. You then file with the Board of Veterans Affairs (BVA). As well the BVA will deny your claim. The process now gets to were you want to go, and that is the United States Court of Appeals for Veterans’ Claims.
[quote=. Judges, rule arbitrarily that they have the right to award VA disability compensation to third parties. The right to play doctor.=[/QUOTE]
Observance to law and our disabled veterans.
Oregon and the United States Supreme Court observance to law and our disabled veterans.
Oregon’s statutes clearly offer many references, in compliance, observance, and their adherence to both state and federal law and protecting veterans benefits.
18.600 Definitions. As used in ORS 18.600 to 18.850:
(6) “Federal benefit payment” means:
(b) A benefit payment from the United States Department of Veterans Affairs that is protected under 38 U.S.C. 5301(a);
34 § 411.837¹ Compliance with state and federal laws required
10 § 409.040¹ Federal law supersedes state law.
26 § 279A.030¹ Federal law prevails in case of conflict
ORS 18.345 Exempt personal property generally. (1) All property, including franchises, or rights or interest therein, of the judgment debtor, shall be liable to an execution, except as provided in this section and in other statutes granting exemptions from execution. The following property, or rights or interest therein of the judgment debtor, except as provided in ORS 18.305, shall be exempt from execution:
(m) Veterans’ benefits and loans.
(ORS 18.305 [Property not exempt from execution for purchase price])
ORS 18.845 Notice of exemptions form; instructions for challenge to garnishment.
State and federal law specify that certain property may not be taken.
(21) Veterans’ benefits and loans.
(22) Medical assistance benefits.
YOU MAY USE THE CHALLENGE TO GARNISHMENT FORM ONLY FOR THE FOLLOWING PURPOSES:
(1) To claim such exemptions from garnishment as are permitted by law.
Compliance to federal law starts here. 38 USC 5301 Nonassignability and exempt status of benefits, is the Oregon state and federal protection of the disabled veteran’s VA disability compensation. “(a)(1) shall not be assignable… shall be exempt from taxation, .. creditors, ..attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”
Yet, Oregon courts, rather than comply with State or federal law (38 USC 5301) in protecting veterans benefits, offer in response, Landis v Landis, Oregon 6/1/2005, “.. benefits are divisible … because there is no conflict.” The United States Supreme Court concurs. Disabled veterans need not apply!
After costly legal expense, it wasn’t disabled Air Force veteran Oregon resident Peter James Barclay, or the thousands of other disabled veterans that received any benefit of these state and federal laws, involved in protecting VA disability compensation from State court ordered spousal support, and then, adding insult, denied his Constitution rights by Oregon’s State Supreme Court. And further, the unforgivable refusal of the United States Supreme Court to consider his May 2, 2012 petition, requesting, “The Court Should Grant Review to Determine Whether State Courts Are Erring as a Matter of Law By Preempting Federal Law with State Law Federal Law, by Considering VA Disability Pay Divisible Under State Community or Equitable Distribution Laws.” (Oct 1 2012) Petition DENIED.
As a Korean era veteran, I am neither disabled, or in any divorce action. Because of the Supreme Court of the United States and Oregon’s indefensible and unconscionable treatment of disabled veterans, reflects the unforgivable uncaring of most States, and it’s legislators towards their disabled veterans. Something that is happening now, in your state! Happening... because of Oregon’s rulings. The practice by State courts nationwide reliance on forum shopping and the false notion of ‘stare decisis’ “to stand by things decided.” (However, not happening in the only state that has not forgotten about the sacrifice disabled veterans gave to their country, IOWA).
William Heino Sr.
For decades, a flawed federal agency directive have cost disabled veterans their benefits.
September 25, 1998.
TO STATE AGENCIES ADMINISTRERING CHILD SUPPORT ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS.
SUBJECT: Obtaining financial support for children from benefits paid by the Department of Veterans Affairs.
BACKGROUND: Section 459 [42 USC 659] “Consent By The United States to income withholding, garnishment.. for enforcement of child support.. ], of the Social Security Act, as amended provides for the garnishment of certain Federal payments for the enforcement of child support and alimony obligations…”
Directive enforcement based on Example #2. Department of veterans Affairs… Pursuant to 38 USC 5307 [Apportionment], and 38 CFR 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.”
The Department of Health and Human Services Child Support Enforcement agency reasoned, 38 USC 5307 “apportionment” as an enforcement issue under their directive to State agencies. SUBJECT: “Obtaining financial support for children from benefits paid by the Department of Veterans Affairs.”
38 USC 5307 is a Dept. of Veterans Affairs internal administrative law. Apportionment is “as may be prescribed by the Secretary,” having absolutely nothing what-so-ever of being in a court room, or an issue of garnishment. Administrative law adjudications are not part of enforcement. Under the “apportionment” statute “as maybe prescribed by the Secretary” there is no enforcement, only administration.
As anybody taking the time reading the statute, 38 USC Sec. 5307 Apportionment of Benefits, it concerns a disabled veteran that is institutionalized, hospitalized, incompetent or unable for what-ever reason to make decisions personally. The inability to function, restricted in discharging his or her normal personal business, household, daily responsibilities. Therefore, any pension, compensation, or dependency and indemnity compensation may be apportioned, not by any court, but as “prescribed by the Secretary.”
Since 1998, and most likely, beyond, lawyers, activist state court judges, and plaintiffs refer to this United States Department of Health and Human Services Office of Child Support Enforcement directive for guidance and preparation. A directive based on a purposely false, sloppy, inaccurate information (apportionment), deliberately to mislead disabled veterans and their attorneys, and setting the stage to partnership with every overbearing activist state court judge in the country to administer their justice.
Disabled veteran, Charlie Wayne Rose (1987) was done in by the United States Supreme Court, State of Tennessee, Dept. of Health and Human Services Office of Child Support agency, and Congressional Act 38 CFR 3.450 (a)(1)(ii) “The regulations broadly authorize apportionment if "the veteran is not reasonably discharging his or her responsibility for the . . . children's support." Rose, a disabled veteran, triple amputee, blind in one eye, requiring constant care, was jailed, lost his appeal in 38 USC 5301 protections of his VA disability compensation claim. It was this agency, Office of Child Support Enforcement, that provided highly inaccurate, false, and misleading information in a very questionable and inaccurate directive. “Apportionment” was used in the U.S. Supreme Court argument Rose v Rose 37 times. And it worked!
If this directive wasn’t a sloppy careless preparation of regulation law, it was then intentional, in order to mislead. Lost forever is veterans rights in protection of VA disability benefits, to fair and equal justice, by a regulation rewritten to falsely accuse and irresponsibly suggesting, “the veteran is not reasonably discharging his or her responsibility for the spouse’s or children’s support .”
Although “apportionment” has only one special meaning through the Congressional legislative intent in United States Code (38 USC 5307), however, the court in redefining it‘s special specific purpose, in order to force judgment, lacking was the compulsory constitutionally required legislative intent by Congress! Due process requires judicial review.Invoking 38 USC 7292, review by United States Court of Appeals.
Regretfully, it took this issue of a groundless, manufactured directive to reveal another means of the further undoing of veterans benefits by clever creative regulatory writing. This is not about child support, as there are other legal remedies available. It’s about the illegal expropriation of VA benefits and protections of the 14th Amendment.
As a veteran of the Korean conflict era, I am neither disabled nor divorced.
either before or after receipt by the beneficiary.
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