VA apportionment and child support issues

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Posted on: Monday, May 02, 2011

Jim,

I am writing on behalf of a fellow soldier and combat brother of my husband's. He is getting an apportionment taken out of his va disability check that is going to his ex wife in place of his child support but iowa will not recognize it as payment so iowa says he is not paying and back child support is piling up etc. I would love to talk more in depth about this if you are Interested because the research I have done states this can be a loophole in the system and I have contacted senators etc and they are interested but if I can't get this particular person on board with giving up his info how can we still help other vets this is happening to?

Is this happening or is this man misunderstanding the system?
Thanks.

Reply:

This issue affects many veterans and is poorly understood even by family practice attorneys, the family courts system and the child support enforcement offices of most states. Offices of your representatives rarely have a clue because they don't understand how this unique "apportionment" system of the VA works. VA payments may not be garnished in the usual fashion. There are laws that protect a veterans disability payments from creditors. However, the VA recognizes how important child support and alimony issues are to the court ordered beneficiary and they allow for a process called apportionment. The beneficiary of the family court order may apply to the VA seeking some of the payment that has been ordered. Once VA investigates the application for apportioned benefits, VA may order that a payment be deducted form the VA benefit of the obligor and sent directly to the obligee.

Most states require that any and all payments for child support and alimony be sent to the state enforcement agency for distribution to the obligee. This ensures that the state is able to account for the timely payment of the correct amount that will satisfy the court's order. The goal is to avoid disputes of who sent how much money and when.

Any payment sent directly to the obligee (or to the child in child support cases) is not recorded by the state enforcement offices and is therefore seen as a gift. Gifts are not recorded and can't satisfy the court's order.

VA will not work with the state. VA will only communicate with the obligee and the veteran. This allows VA to avoid getting too deeply involved in hundreds of thousands of divorce disputes.

Far too many veterans waste time seeking help from Senators or other politicians without understanding that no politician has any legal authority to do anything to correct this situation on an individual basis.

There is only one source to turn to so that this can be fixed properly. The veteran must turn to the family court that has jurisdiction of the divorce order. That is usually the family court where the obligee or the children claim permanent residence. The veteran should contact the clerk of court and ask for a hearing before the judge to ask that any VA apportionment money be recorded as meeting the court's order. The veteran may act "pro se". This means the veteran does not have to have an expensive family law attorney as representative. Family courts are often structured so that disputes like this may be sorted out without a great deal of fuss or expense.

Once the magistrate has ordered that the VA apportionment payment  does satisfy (or partially satisfy) the intent of the original order, the state enforcement office will take it from there. The judge may even order that all past payments be recorded and used to satisfy any arrears.

Most importantly, veterans must clearly understand that this is the only way that anything will be done about the issue of apportionment. There is no other pathway that I'm aware of to resolve the problem. The family courts wield a lot of authority and other legal entities are not likely to interfere with any order from those courts. This is a problem that the veteran can and must solve for him or her self.

 

 

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Comments

Submitted by princie34 on Fri, 2011-05-27 05:05

I am.in a very similar situation, yet I have gone directly to the judge, who will not only NOT consider those funds towards my child support contribution, she will also not reduce my child support order, which was originally based upon combat pay and my ex not being employed. She is now currently employed full time, and I am 100% disabled with an unemployable status. I cannot afford to survive myself giving over half my income towards child support and live in fear of going to jail every month. And in fact was just in jail. Not only does that not accomplish anything , but I can't run out and get a second job to pay all that is required, and they will not allow me my medication in jail. The judge told me she didn't care if I, my step daughter and my current wife live in the streets. I have severe PTSD and cannot handle the stress of all this. I have already lost my livelihood, must I lose everything else too? Do you have any suggestions for me? Aside from getting a lawyer I can't afford I don't know what to do!

Submitted by Jim.Strickland on Fri, 2011-05-27 10:45

The issue that you seem to have here is that the family court judge originally set your obligation based on the financial reports that were available at the time that the divorce and order were finalized. If you had a fairly high income then, the obligation would have been higher too.

Once your income drops, if it is through no fault of your own, you must return to the family court that has jurisdiction and then you must ask the judge to modify your obligation. Many judges are stern about not modifying and they will "impune" an income for you that is higher than what you are actually earning. Their thinking is that if you earned that before, you should be able to do it again. Many obligors will purposely lower their income to punish the ex-spouse and the family courts don't like to see those games played.

Family courts will allow you to approach "pro se", without a lawyer and tell your story. If you can produce enough evidence of why your income is lower the judge may modify your obligation.

Returning to the family court is the only way to resolve the problem. There are no other avenues for help. In family matters the family court pretty much rules it all.

Submitted by stojnvc2 on Wed, 2012-02-22 20:20

Sir,

I just wanted to thank you for your reply to these other veterans. I am from Illinois, and have just transitioned out of Active Duty to become a full-time student. I have already filed a motion to modify not only my child support, but also my visitation, and am currently waiting for the continuance on 16 March 2012.
The VA did give me the idea of apportioning the child support payments inconjunctinon with my VA Medical Compensation. I'm in the process of "Quick Start" to get my compensation approval finalized. The VA did recommend that I fill out Form 21-4138 (Googable), and in order to enforce the apportionment. I will try to work with the VA during my "physicals and examinations" about how to properly fill this form out.
I did like your idea about filing a motion to have the apportionment money be recorded as meeting the court's order.
I also liked the idea of having the apportionment money go to my state's enforcment agency rather than straight to my "soon to be x-wife's" bank account. The way the VA explained it to me, was that the money would not be able to be used by my "soon to be x-wife" and that it would be saved in an account for my daughter once she becomes an adult. Is this how it really works?
Also, would it be a good idea to follow the same percentage (20% in Illinois) of child support as if I was working to be taken from my VA Med Compensation?

Submitted by admin on Thu, 2012-02-23 11:04

I'm happy to hear that the Stateside Legal web site has provided you
with information that you can use.

However, I'm a bit concerned that you say that "The VA did give me the
idea of apportioning the child support". In my experience the VA (the
federal Department of Veterans Affairs) does not offer such advice.
Your VA is not particularly concerned about your divorce as such
things aren't part of the mission of the VA.

I have doubts that you're getting advice from the VA. It's more likely
you're hearing things from some sort of representative of another
organization or perhaps another veteran?

I don't understand why you would have an apportionment filed for or on
yourself? The apportionment process is usually used when a veteran
won't otherwise pay the child support or alimony as ordered in a
family court. Otherwise, you could make the court ordered payments
yourself and save everyone the paperwork.

Finally...no, child support payments are not saved by the child
enforcement services of the state where you make payments. The child
support enforcement service is set up to ensure that you meet the
obligation imposed on you by the decree issued by the family court.
When you are ordered to pay child support you will probably be ordered
to deliver the payment to the child support enforcement service. That
agency will record it and then pass it on to the custodial parent.

Once it reaches the custodial parent, that individual has the
responsibility to decide just how the money will be spent. Neither you
nor anyone else has any voice unless there are some serious issues of
misfeasance or malfeasance of the money.

Once the child becomes an adult (usually 18 to 23 years old, depending
on the decree and circumstances) your obligation to pay any child
support will end.

I fear you aren't getting good advice. I advise you that you should be
represented by a well qualified family law attorney. Divorce is not a
VA issue. It is a matter for the civil courts and your status as a
veteran has little if any influence on any outcome.

Jim