Legal Question in Family Law in Oregon

Is VA disability compensation a marital asset? Answer: No.

YOUR QUESTION:

Is there any case law in Oregon relating to title 10 USC or the USFSPA on VA disability compensation being treated as a marital asset and if so was it appealed and upheld or overturned in the Oregon State Supreme Court?

ANSWER:

No, there is no Oregon case law dealing with this particular issue.

From other states, however, it appears that if the VA disability compensation is being received by the veteran spouse at the time the divorce occurs, the divorce court judge cannot divide it, either directly or indirectly, or otherwise consider it as a marital asset. It is simply �off limits.� See Mansell v. Mansell, 490 U.S. 581 (1989).

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=490&invol=581

On the other hand, if the non-military spouse was awarded a share of the military spouse�s present or future military retired pay pursuant to USFSPA and the military spouse then effectively diminishes (or wipes out) the non-military spouse�s award as intended by the divorce court by waiving the military retired pay in order to obtain VA disability compensation, most states permit the divorce court judge to then implement appropriate remedies to �make whole� the non-military spouse, usually by ordering the military spouse to simply pay directly to the non-military spouse such amount of money each month as is equal to the monetary loss suffered as a result of the waiver of the military retired pay. In dealing with the problem in this manner, because the waiver of military retired pay in order to obtain the VA disability compensation occurred AFTER the divorce, there appears to be no conflict with the Mansell decision (since Mansell dealt only with VA disability compensation that was already being received at the time of the divorce). I see no reason why the Oregon courts would not follow the caselaw of other states in the treatment of this issue.

Practice tip: In the cases where VA disability compensation is not being received at the time of the divorce, a well-crafted settlement agreement should contain some type of �indemnification� provision so as to provide a pre-formulated �cure� to the problem in the event it should ever arise in the future.

LDG

LAWRENCE D. GORIN

http://www.divorcesource.com/OR/pages/ldgorin.html

Law Offices of L.D. Gorin

521 S.W. Clay St., Suite 205

Portland, Oregon 97201

Phone: 503-224-8884 (afternoons, Pacific time)

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E-mail: [email protected]