West Virginia Legislators Introduce Disabled Veterans’ Benefits Protection Bill
State Representatives; Stan Shaver, Scott Varner, Randy Swartzmiller, and Robert D. Beach are all members of the West Virginia Legislature. And all four of these West Virginia politicians are sponsors of House Bill 2546, legislation designed to protect veteran’s disability compensation from any consideration as a third party award in state divorce courts. H.B. 2546 was introduced January 9, 2008 and referred to the Committee on Veterans Affairs and Homeland Security and Finance.
Shaver Varner Swartzmiller Beach
sshaver@mail.wvnet.edu svarner@mail.wvnet.edu rswartzmiller@hotmail.com rbeach@mail.wvnet.edu
H.R. 2546 reinforces existing federal legislation USC, Title 38, Veteran’s Benefits, §5301(a). This federal statute was written by Congress to protect veteran’s benefits from third party awards under any legal process whatsoever. However, in spite of the strong wording of 5301, many state divorce courts nationwide routinely violate Title 38, by awarding alimony or spousal support based solely on a disabled veteran’s disability compensation. The passage of H.R. 2546 would put an end to this questionable practice in the Great State of West Virginia.
Operation Firing For Effect is requesting all West Virginia residents contact their representatives and urge them to support and pass H.B. 2546. You will find contact information for all West Virginia legislators at this link;
http://www.legis.state.wv.us/Contact/capmail.cfm
Or contact the House Clerk; Gregory M. Gray, Room 212M, Bldg. 1, State Capitol Complex, (304) 340-3200. Tell Mr. Gray that Operation Firing For Effect asked you to call in support of H.B. 2546.
Operation Firing For Effect commends State Representatives Shaver, Varner, Swartzmiller, and Beach for their actions to improve and protect the disability benefits earned by our men and women in uniform.
In an effort to avoid any confusion or misunderstanding concerning H.B. 2546, below you will find the legislation text in its entirety.
H. B. 2546
(By Delegates Shaver, Varner, Swartzmiller and Beach)
[Introduced January 9, 2008; referred to the
Committee on Veterans Affairs and Homeland Security then Finance.]
A BILL to amend and reenact §48-5-510 of the Code of West Virginia, 1931, as amended; to amend and reenact §48-7-101; to amend and reenact §48-8-103; and to amend and reenact §48-8-105, all relating to excluding disability income received by a veteran from the U.S. Department of Veterans' Affairs for service related injuries from any calculation used to determine spousal support.
Be it enacted by the Legislature of West Virginia:
That section §48-5-510 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §48-7-101 be amended and reenacted; that §48-8-103 be amended and reenacted; and that §48-8-105 be amended and reenacted, all to read as follows:
ARTICLE 5. DIVORCE.
§48-5-510. Consideration of financial factors in ordering temporary relief.
(a) In ordering temporary relief under the provisions of this Part 5, the court shall consider the financial needs of the parties, the present income of each party from any source, their income-earning abilities and the respective legal obligations of each party to support himself or herself and to support any other persons. Provided, That disability income received by a veteran from the U.S. Department of Veterans' Affairs for service related injuries is not income for purposes of this article.
(b) Except in extraordinary cases supported by specific findings set forth in the order granting relief, payments of temporary spousal support and temporary child support are to be made from a party's income and not from the corpus of a party's separate estate, and an award of such relief shall not be disproportionate to a party's ability to pay as disclosed by the evidence before the court: Provided, That child support shall be established in accordance with the child support guidelines set forth in article thirteen of this chapter. Provided, however, That the corpus of the estate of a veteran receiving disability income for service related injuries cannot be used as a means of replacing the value of the disability income.
ARTICLE 7. EQUITABLE DISTRIBUTION OF PROPERTY.
PART 1. MARITAL PROPERTY DISPOSITION.
§48-7-101. Equal division of marital property.
(a) Except as otherwise provided in this section, upon every judgment of annulment, divorce or separation, the court shall divide the marital property of the parties equally between the parties.
(b) Nothwithstanding any other provision of this code to the contrary, disability income received by a veteran from the U.S. Department of Veterans' Affairs for service related injuries shall not be considered as property for the purposes of this article.
ARTICLE 8. SPOUSAL SUPPORT.
§48-8-103. Payment of spousal support.
(a) Upon ordering a divorce or granting a decree of separate maintenance, the court may require either party to pay spousal support in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party. Payments of spousal support are to be ordinarily made from a party's income, but when the income is not sufficient to adequately provide for those payments, the court may, upon specific findings set forth in the order, order the party required to make those payments to make them from the corpus of his or her separate estate. An award of spousal support shall not be disproportionate to a party's ability to pay as disclosed by the evidence before the court. Provided, That disability income received by a veteran from the U.S. Department of Veterans' Affairs for service related injuries is not income for purposes of this article. Nor can the corpus of the estate of a veteran receiving disability income for service related injuries cannot be used as a means of replacing the value of the disability income.
(b) At any time after the entry of an order pursuant to the provisions of this article, the court may, upon motion of either party, revise or alter the order concerning the maintenance of the parties, or either of them, and make a new order concerning the same, issuing it forthwith, as the altered circumstances or needs of the parties may render necessary to meet the ends of justice.
§48-8-105. Rehabilitative spousal support.
(a) The court may award rehabilitative spousal support for a limited period of time to allow the recipient spouse, through reasonable efforts, to become gainfully employed. When awarding rehabilitative spousal support, the court shall make specific findings of fact to explain the basis for the award, giving due consideration to the factors set forth in section 8-103 one hundred three of this article: Provided, That disability income received by a veteran from the U.S. Department of Veterans' Affairs for service related injuries shall not be considered as income nor for purposes of this article. Nor can the corpus of the estate of a veteran receiving disability income for service related injuries be used as a means of replacing the value of the disability income. (b) An award of rehabilitative spousal support is appropriate when the dependent spouse evidences a potential for self-support that could be developed through rehabilitation, training or academic study.
(b)(c) The court may modify an award of rehabilitative spousal support if a substantial change in the circumstances under which rehabilitative spousal support was granted warrants terminating, extending or modifying the award or replacing it with an award of permanent spousal support. In determining whether a substantial change of circumstances exists which would warrant a modification of a rehabilitative spousal support award, the court may consider a reassessment of the dependent spouse's potential work skills and the availability of a relevant job market, the dependent spouse's age, health and skills, the dependent spouse's ability or inability to meet the terms of the rehabilitative plan and other relevant factors as provided for in section 8-103 one hundred three of this article.
NOTE: The purpose of this bill is to exclude disability income received by a veteran from the U.S. Department of Veterans' Affairs for service related injuries from any calculation used to determine spousal support.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
http://www.legis.state.wv.us/Bill_Text_HTML/2008_SESSIONS/RS/Bills/hb2546%20intr.htm
To review TITLE 38, U.S. Code, Veterans Benefits, §5301(a) in its entirety, visit;
http://assembler.law.cornell.edu/uscode/search/display.html?terms=Title%2038,%205301%20(a)&url=/uscode/html/uscode38/usc_sec_38_00005301----000-.html
If you would like to know more about this subject, visit;
http://jerebeery.com/5301%20Club.htm
Jere Beery
OFFE Public Relations Director
jerebeery@aol.com
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8 comments:
Judges overstepping. A veteran's observation.
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How can state court judges waive away disability rights, and arbitrarily award as alimony or, as in other cases just take, a portion of a veteran’s disability rated compensation, determined on a case-by-case basis of a veteran’s whose disability rating that maybe, is factored in as critical? Judgment as if all disabilities are exactly the same? State court judges are overstepping those whose authority it belongs, in the practice of medicine, reevaluation, and rehabilitation of the veteran. And in doing so, ignorance of the law is no excuse, the law is quite clear, along with violating the canons of standard conduct for judges, violating “Authority for schedule for rating disabilities.” 38 USC 1155, "..., in no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred.” Violating as well, 38 USC 5301, 42 USC 1408.
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As veterans’ all too well know, state court judges, as incompetent as they are in the knowledge required to determine medical necessity and procedures, upon eyeing a veterans disability compensation, and as well as Social Security disability, as alimony, the standards of judicial jurisprudence, and laws are totally ignored. However, the following federal judge’s ruling supports the standard for which state court judges are governed.
State can't deny kids Medicaid services, judge says.
http://www.ajc.com/search/content/metro/stories/2008/06/16/medicaid_children_lawsuit.html
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“The decision last week by U.S. District Judge Thomas W. Thrash pertains to the case of a 13-year-old developmentally disabled girl, Anna C. Moore of Danielsville in north Georgia. Her doctor prescribed 94 hours of private duty nursing care a week for her, but the state Department of Community Health approved only 84 hours.
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The Atlanta federal judge found the state does not have the discretion to deny funding for services prescribed by a treating physician. "The decision affirms that treating physicians, and not the state, should make those decisions," said the girl's attorney, Joshua Norris of the nonprofit Georgia Advocacy Office.”
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VETERANS LAW JOURNAL
http://74.125.45.104/search?q=cache:se1h9j9w5GMJ:www.cavcbar.net/Fall_2004.pdf+the+statutes+in+broadly+precluding+judicial+review+of+the+contents&hl=en&ct=clnk&cd=11&gl=us
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A Quarterly Publication of the Court of Appeals for Veterans Claims
Bar Association
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“Thus, the Federal Circuit found that “[t]he statutory scheme … consistently excludes from judicial review all content of the ratings schedule as well as the Secretary’s actions in adopting or revising that content.” Looking at the legislative history, the Federal Circuit pointed out that “[t]he language in the legislative history is not limited to the percentages of the disability ratings, as appellants argue, but matches the statutes in broadly precluding judicial review of the contents of the disability rating schedule in toto.”
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Is this what returning veterans from Iraq and Afghanistan need? Come home to fight another battle? What needs to be done? As explained above briefly, you know your fellow veterans’ are taking a beating from judges in state divorce court. Seizing veterans’ VA disability compensation. Being awarded as alimony. These judges, although recognizing federal law, somehow justify their interpretation of 38 USC 5301 and 10 USC 1408, and the Supremacy Clause as not being perhaps strong enough. Now comes, 38 USC 1155, “Authority for schedule for rating disabilities”, this is possibly just what the disabled veteran needs to overcome the state court’s opposition and uncertainty, with a law that leaves no room for ambiguity in it’s meaning.
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I don’t believe 1155 argument has ever been tried, or introduced in court. Now is the time to test this. Once introduced, the court will have to deal and rule on this. If there are any upcoming veterans' court divorce proceedings, or even possibly pending cases, the introduction of 1155 could possibly be the one thing that will challenge and remove, hopefully forever, another burden from our disabled veterans, at an unfortunate time in their lives. I hope you found this advice worthwhile. Please post this notice on your bulletin board, email, or newsletter, there may be a veteran that can benefit from this advice Thank you.
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