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The U.S. Department of Veterans Affairs (VA) pays disability benefits tax-free to veterans for service-related injury and disease. We recently posted in this space about VA disability payments in the context of property division in divorce. Specifically, under federal law, while a state court may divide military retirement benefits between divorcing spouses as part of property division, the court may not divide veterans’ disability payments, which must remain completely part of the recipient spouse’s separate property.

Countable income for the ability to pay child support

In a divorce, however, the court may consider VA disability payments to be countable income for purposes of determining how much child support (and spousal support) the paying spouse should pay.

Alwan v. Alwan, a July 2019 case in the Court of Appeals of Virginia, illustrates this difference in treatment. The appeals court reviewed a trial court decision in which the judge had increased the father’s child support obligation because of his veterans’ disability benefit payments, which may be a source available to determine gross income available to pay child support.

The Virginia child support guideline statute says that gross income is “all income from all sources,” including sources in a long list, including veterans’ benefits. The appeals court explained that child support focuses on the child’s best interest and is for their benefit.

Gross income definition

The father argued that the same federal prohibition on including veterans’ disability benefits in marital property to be divided in a state court divorce should extend to a ban on its consideration for purposes of income available for child support. The appeals court said that if Congress had wanted to keep VA disability protected from consideration for child support, it could have done so, but that a state court could not extend the congressional ban on its inclusion in divisible marital property to a ban on its consideration for child support.

Further, the appeals court pointed to earlier U.S. Supreme Court precedent pointing out that veterans’ disability benefits are meant to support not only the veteran but also their family members. The court also cited its own prior case that held Virginia courts may consider VA disability benefits as available income for both child support and spousal support purposes.

(The Alwan v. Alwan decision is available on Westlaw at 70 Va.App. 599.)