In its 1987 Rose decision, the United States Supreme Court interpreted the legislative history underlying VA disability benefits to mean that Congress firmly intends such payments to be made as compensation to a disabled vet “and his family.”
That case now stands as strongly entrenched precedent, with courts in 49 states — including Georgia — relying upon its rationale to award alimony, or spousal support, following a divorce to the ex-spouse of a disabled veteran from his or her disability compensation in certain cases. Only Arizona disallows vets’ benefits from being included as a factor in calculating spousal or even child support payments.
A disabled vet from Oregon is now seeking to challenge that position on the ground that it violates congressional intent and federal statutory law. An Oregon state court ruled in 2010 that Peter James Barclay’s ex-wife was entitled to a portion of his VA disability benefits for spousal maintenance. An appellate court in that state agreed, and Barclay now seeks reconsideration of that outcome at the Supreme Court. Implicitly, he is petitioning the Court to view anew and set aside its Rose decision.
The basis for doing so, he says, is a U.S. Code statute that renders VA disability benefits immune “from … attachment, levy and seizure.” He thinks that language applies centrally to his situation.
Barclay was granted a 100 percent disability rating award by the VA following his participation as an active-duty Air Force member in Oklahoma tasked with recovering dead and wounded victims following the1995 bombing of the federal building in Oklahoma City. He eventually suffered extreme post-traumatic stress symptoms and became unable to work.
Source: HeraldNet, “Ruling sought on split of military benefits in divorce,” Tom Philpott, May 21, 2012
