ANSWER: The divorce court only has authority to divide “military retired pay.” The federal law does not allow for division of VA disability pay. If a retired service member qualifies for VA disability pay and opts to accept it, it will result in a dollar-for-dollar reduction of his military retired pay. And this will result in a corresponding pro-rata reduction in the amount to the military retired pay to which you are entitled to receive. (He, of course, still get the same total amount of money, and the dollars that are paid to him as VA disability pay are non-taxable, unlike the dollars that constitute military retired pay.)
It is a common tactic for retired service persons to seek to qualify for VA disability pay, since the dollars are tax-free and, in addition, it will reduce the amount paid to the former spouse as division of retired pay, with those dollars then going into the pocket of the retired service person in the from of disability pay.
Generally, a carefully prepared divorce decree, drafted by the wife's lawyer (and NOT the husband's attorney) so as to provide protection to her, will include an “indemnification” provision in the divorce decree that will protect the former spouse (wife) by requiring husband to indemnify (reimburse) wife for any payment reduction she incurs in the event he waives retired pay in order to receive disability pay.
Typical divorce decree language might read as follows:
----> "If the husband takes any action (such as accepting disability pay) that reduces the pay the wife receives, then he shall pay her directly the amount by which her share is reduced. In addition, husband hereby consents to the payment of this amount from any periodic payments he receives (such as wages) to allow this payment to wife, and this clause may be used to show said consent when this is necessary for the entry of a garnishment, wage assignment or income withholding order." There is no law that requires your ex- husband to be responsible to reimburses you for the reduced share of retired pay that you are now receiving due to his having waived retired pay in order to receive VA disability benefits. HOWEVER, you need to carefully read your divorce decree to see if it contains an indemnification provision such as mentioned above. If it does, you would then have standing to enforce it.
BUT.... All hope is not to be lost! The courts of Colorado have confronted and recognized the injustice, unfairness and inequity resulting when ex-husbands such as yours do what your ex-husband and now done, and they don’t want to let them get away it.
You need to carefully study the following cases from Colorado Court of Appeals:
in re Marriage of Warkocz, 141 P3d 926 (Colo App 2006). http://www.courts.state.co.us/coa/opinion/2006/2006q2/04CA2031.pdf ---> “Wife contends that the trial court erred in failing to award her the amount she would have received from husband's military pay had he not applied for, and received, disability benefits. She argues that she is entitled to relief based on the provisions of the agreement. We agree.”
---> “Consistent with the public policy of our state [Colorado] and the decisions of the other jurisdictions noted above, we conclude that the trial court is not precluded from equitably enforcing the parties' agreement. We agree with [the decisions of other state appellate courts] that "neither the USFSPA nor prior Supreme Court decisions require our courts to completely ignore the economic consequences of a military retiree's decision to waive retirement pay in order to collect disability pay."
In re Marriage of Lodeski, 107 P3d 1097 (Colo App 2004) http://www.cobar.org/opinions/opinion.cfm?OpinionID=4886 ---> "Husband contends that, because he has the right under federal law to elect to receive veterans’ disability benefits and waive military retirement pay, he cannot be held in contempt for converting his pension. We disagree.”
Sooooooo.... I want you to confer with a Colorado family law lawyer who is expereince with the USFSPA rules and regulations and how that law is dealt with by the Colorado courts. For starters, try the
Find-a-Lawyer website for the
Colorado Bar Association at:
http://www.cobar.org/directory/index.cfm?ID=20036 OK. I wish you all the best. (Sorry I’m not in Colorado. If I were, you could hire me and I would get job done.)
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