Military Disability Benefits Divorce

Posted on January 29, 2017

The Uniformed Services Former Spouses Protection Act exempts VA disability compensation from the definition of “disposable retired pay.” Congress adopted legislation to allow the disabled service member concurrent receipt of both forms of payments-retired pay and disability benefits deemed eligible for the Concurrent Retirement and Disability Pay (CDRP).  Often the result of this waiver leaves the former spouse of the military member with a diminished  community property share of the military retirement benefits when some or all of those benefits are waived by the military member in lieu of disability benefits.

Yet, “It is a settled principle that one spouse cannot, by invoking a condition wholly within his control, defeat the community interest of the other spouse. (” Marriage of Gilmore (1981) 29 Cal 3d 418. )  

The complexity of the Federal laws juxtaposed with California Family Code in determining the division of military retirement benefits when VA disability is a factor must be analyzed carefully case by case and carefully addressed in the parties’ divorce process.