Non Divisible Benefits

VA Disability Benefits

VA benefits are preempted by federal law from being characterized as community property.

A servicemember’s right to elect to receive VA disability benefits, in exchange for waiver of some or all of retired pay, can have the effect of reducing the community estate. However, this right under federal law, cannot be prohibited by court Order.

Limbaugh v. Limbaugh, 71 S.W.3d 1 (Tex. App. – Waco 2002, no pet.);

Ex parte Burson, 615 S.W.2d 192, 196 (Tex.1981)

: Court cannot expressly or impliedly prohibit a retired service member from unilaterally waiving some or all of his “disposable retired pay” after divorce in exchange for VA disability benefits.

Work around for court: court may consider VA disability benefits in making a just and right division of the marital estate.

Rothwell v. Rothwell, 775 S.W.2d 888, 892 (Tex.App.-El Paso 1989, no writ)

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