OPINION ON USE OF MILITARY DISABILITY BENEFITS IN DIVORCE CASE

The Alabama Court of Civil Appeals has released an opinion on the use of VA military disability benefits to calculate alimony, child support, and for determining the amount of alimony arrearage payments.  In Goldman v. Goldman # 2140488, the Court of Civil Appeals upheld current Alabama law holding that a veteran’s military disability benefits cannot be considered as in come for purposes of calculating alimony.  In Ex parte Billeck, 777 So. 2d 105 (Ala. 2000), the Alabama Supreme Court followed the decision of the United States Supreme Court decision in Mansell v. Mansell, 490 U.S. 581 (1989) which held that the federal law regarding military disability benefits preempted a state’s community property laws.

In Goldman, the court addressed several issues related to the use or non-use of military disability benefits.  First, the Court of Appeals held that a trial court can include a veteran’s military disability benefits as income when calculating the amount of child support under the Alabama Child Support Guidelines.  The Court relied on a 1987 U.S. Supreme Court case, Rose v. Rose, 481 U.S. 619 (1987), to support its rational in the opinion.

Second, the Court of Appeals held that a trial court could also consider military disability benefits in matters related to the ability to pay and calculate of the amount of payments required to cure an arrearage in alimony payments, holding:

However, Ex parte Billeck does not address whether those benefits may be considered as income to cure an arrearage that was accrued due to the obligor’s contumacious actions.

In plain terms, where a veteran paying alimony gets behind on the payments (an arrearage), and the arrearage is due to willful action (contempt), the trial court is allowed to consider the veteran’s military disability benefits in determining how to rule on the arrearage.

It should be noted that this opinion deals with Military Disability Benefit payments, as opposed to simply military retirement in general.  Generally speaking, military retirement benefits are considered income for purposes of alimony, child support, and ability to pay.  Problem like the one that occurred in Goldman come up when a veteran offsets their military retirement benefit by the amount of their veteran’s military disability benefit.  In relation to divorce matters, this offset essentially reduces your income by the amount of the disability benefit for purposes of determining alimony.

William K. Bradford was an attorney of record on the appeal on behalf of the Appellee, Ms. Goldman.

Read the Entire Opinion:  Goldman Opinion

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