VA disability and child support

Question:

I was informed that my VA disability is a protected pay and should not be used when calculating the child support and maintenance, is this true? Do I have a right to go back and have both be recalculated without my VA Disability pay factored in? I have a VA rating of 80% and I do have a regular job and receive military retirement pension.

Jim's Reply:

There is a long standing rumor in the veteran community that VA disability payments are protected and aren't to be used in child support and alimony calculations. This is not true and the courts have long upheld that all income, including disability payments from any source, must be reported to the family court to be used in the calculation to determine financial obligations. The rumor comes out of what is sometimes called the 5301 rule.  The 5301 rule says that veterans disability benefits can't be garnished to pay a debt.  However, the family court doesn't attach or garnish the money, they calculate your income and tell you to pay it with any money you wish to use. The underlying theory to much of this is that your disability money can't be garnished to pay a debt but your family is an obligation, not a debt and VA disability money is paid to help the vet support his family. If you don't pay, then VA can and will apportion money from your payments and send it to your ex. That isn't garnishment, it's apportionment. The only way you can change your obligation is to seek a modification in the court...that rarely works.  Good luck.