Child Support and Veterans Benefits - Q and A
My only income is Veteran's Benefits - do I have to pay court-ordered child support?
Yes. Unless state law says otherwise, a court has the right to include the money that you receive from the VA as income when it decides how much you should pay for child support. This is true even if your Veteran's Benefits are your only source of income.
It is very important for you to let the VA know that you have children and/or a spouse because you may receive extra benefits because of them.
Will the VA honor a court "Withholding Order" for the collection of child support and allow the child support payments to be taken right out of my Veteran's Benefits' check?
Normally, the United States Government will not honor any Withholding Orders issued by state court. That means that the U.S. will not allow its payments to retirees or veterans to be sent to anyone except the beneficiary (the retiree or veteran).
BUT there is an exception for child support. Child support payments can be garnished (taken directly from your check and sent to the person collecting the child support) from payments made by the U.S. government. "Garnish" means to take money from a payment because of a Withholding Order, such as a child support order.
In addition, there is an exception to the above exception for Veteran's Benefits. Veteran's Benefits paid to you because you are disabled or elderly and low-income cannot be garnished.
However, if you are entitled to military retirement benefits AND Veteran's Disability Benefits, then the VA may allow a state court to take child support payments directly from your Veteran's Disability Benefits' check.
- Are you retired from the military after 20 years of service? Do you receive uniformed services retirement?
No - then your Veteran's Disability Benefits cannot be garnished.
Yes - then keep reading.
- Did you waive retirement pay so that you could get disability benefits?
Yes - then all of your benefits are now Disability Benefits and cannot be garnished.
No - then keep reading.
- Did you waive part (but not all) of your retirement benefits to get Disability Benefits, but still receive some retirement benefits?
Yes, then the part of your Veteran's Disability Benefit that is substituting for retirement benefits could be garnished.
If your Veteran's Benefits are garnished, make sure that you take part in the divorce or family court process. The court should give you proper credit for any payments garnished from your Veteran's Benefits. In other words, your V.A. Benefits contribution should count toward your overall child support obligation.
Even if my benefits cannot be garnished, can my former spouse (or ex-boyfriend or girlfriend) ask the VA to send part of my benefits directly to him or her for child support?
Yes. The custodial parent (your ex who has the kids living with him or her) may ask the VA to send part of your Veteran's Benefits to him or her for child support. The custodial parent has to make a special request to the VA for an "apportionment." This means that some of the money that goes directly to you would be taken out of your benefits and sent directly to the custodial parent for child support.
What is the process for granting an apportionment? Can I object even if I have been ordered to pay child support?
Yes, you can object to an apportionment even if you have been ordered to pay child support. You can slow down the process if you object to the apportionment. However, you must make sure that you give the VA any information that it requests about your finances. Your financial situation is a very important piece of information in this process. Go to Apportionment section below if the VA has begun the apportionment process against you.
If my ex does not make a claim for an apportionment, do I still have to worry about paying child support from my Veteran's Benefits?
Yes. Even if your ex does not ask the VA for an apportionment, he or she can use all the tools that state law allows to try to collect court-ordered (or administratively ordered) child support. Most states can suspend your driver's license or other state licenses (hunting, etc.), if you do not pay child support. Your ex can also bring you to court for contempt if you do not pay your child support. If you are found to be in contempt, a court could order you to surrender valuable property or belongings (motorcycle or car, etc.), and a court could order that you serve time in jail for non-payment of child support. In addition, state departments of human services can keep your tax refund and apply it to child support debt.
Can the state take my child support out of my bank account where my Veteran's Benefits' check is deposited?
Yes. The state can force your bank to remove money that you owe in child support from your bank account. In other words, the state can garnish your bank account without your consent to collect child support. For many debts, except for child support, your Veteran's Benefits are protected from garnishment. New laws require your bank to protect the money in your account equal to two months' worth of benefits. However, the state can collect child support from your bank account at any time, no matter how much money you have in your account.
A. Starting the process - When will the Veterans Administration NOT allow an apportionment?
The VA cannot grant a claim for an apportionment if:
- the amount of your benefits is too small to be divided between you and your children; or
- another person has legally adopted your children (However, if you were receiving additional benefits because of these children, the extra benefit that you were receiving for the children could be given directly (apportioned) to the adoptive parent.)
- the beneficiary (person who is receiving the Veteran's Benefits) is the one who is requesting the apportionment. You cannot ask the VA to send part of your check to your children.
B. If the VA decides that it can grant the claim, what happens next?
If none of the three exceptions above apply, then the VA must gather evidence on these two issues:
- Do the children need financial assistance?
- Would taking money from you cause you a financial hardship?
This evidence about the children's needs must be provided by the person who is claiming the apportionment for child support. You must provide the information about your financial situation. The VA will send forms to both of you to fill out. This form asks you for information about ALL of your income and assets and all of your expenses.
- any money that you earn by working;
- any Social Security benefits that you receive;
- any retirement or pension benefits that you receive;
- any public benefits that your receive, such as welfare benefits, TANF, or food stamps
- any money you have in bank accounts;
- any money you have in a retirement plan, IRA or 401(k);
- stocks and bonds;
- real estate (not including the home where you live)
- all utilities: water, gas, heat, electricity, telephone;
- medical expenses;
- school expenses
Find the required form here: VA form 21-0788. If you need help filling this form out, you should contact your nearest legal services or veterans' support group as soon as possible. There are deadlines for filling out these forms and returning them to the VA. You will also need to provide proof of the income, assets and expenses that you list on the form.
C. After I fill out the form and give proof of my income, assets and expenses, does the VA need any more information from me?
Yes. The VA will want to know if you are paying child support or if you have helped your children financially in any way. If you are receiving extra money for your children as part of your Veteran's Benefits, the VA will want to know what you have done with that money for the children. You should provide as much proof as you can (such as receipts and cancelled checks) about the money that you have spent for the children or the money that you have given your ex for the children.
If you are not receiving extra money for your children as part of your Veteran's Benefits, the VA may ask your ex to provide proof that the children are your biological children or if you are legally responsible for the children.
You will be allowed to give a written statement to the VA explaining the support that you have given your children. You can also explain why paying child support will be a great financial hardship for you. You will have 60 days to present this evidence. If you are having trouble doing the written statement, get help from your local legal services organization or veterans' support group.
D. What happens next?
You may receive a notice of a "proposed adverse action." This notice will establish an "Amount of Interim Withholding." The Interim Withholding means the amount of money that the VA will be taking from your benefits and giving to your ex for your children. Your can stop the withholding from taking effect by requesting a hearing within 30 days of the release of the Notice. You should request a hearing right away if you disagree with the withholding. By requesting the hearing, you will stop the payments to your ex until a final decision is made by the VA.
E. How will the VA make the Final Decision?
There are three possible outcomes to the apportionment process:
- If the person claiming the child support (apportionment) for the children does not show that the children have a financial hardship, then the apportionment will be denied.
- If the person claiming the child support has shown financial hardship, BUT the veteran will also suffer financial hardship from the loss of the money, then the apportionment will be denied.
- If the person claiming the child support shows financial hardship AND the veteran does not show that he will suffer financial hardship, then the apportionment will be granted.
F. Can I appeal the Final Decision?
Yes. If you want to appeal the Final Decision, you must file a "notice of disagreement" with the VA within 60 days from the date that the VA mailed the notice of the Final Decision to you. Be careful to send the "notice of disagreement as soon as possible so that you do not miss the deadline.
A "notice of disagreement" does not require a special VA form. It can be a simple letter from you stating that you disagree with the decision and you want to contest the result.
Appealing a Final Decision can be a complicated process. When you appeal, you will be given the right to present new evidence, and you will have the opportunity for a personal hearing. You should seek additional assistance from your local legal services office or veterans' support group as soon as you decide to appeal. The Board of Veterans' Appeals posts this self-help information. How do I Appeal?
Last updated September 2017