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Disabled vet challenges spousal support ruling

On Behalf of | May 28, 2012 | Divorce

If the United States Supreme Court agrees to consider the petition of a disabled veteran and reverses an Oregon state court decision that ruled against him in a divorce case, a number of ex-spouses in Florida and every other state in the country except Arizona will be less than happy.

Firmly established precedent indicates that Peter James Barclay, a vet who suffered post-traumatic stress disorder following clean-up work at the Oklahoma city bombing site in 1995 and subsequently received a 100 percent VA disability rating, faces an uphill and likely losing battle.

He’s willing to try, though, with his attorney arguing that his divorced wife’s receipt of a portion of Barclay’s disability benefits for spousal support violates federal law. Moreover, Barclay’s legal team contends that federal law also prohibits vets’ disability benefits from being divided as marital property.

Barclay’s former spouse was awarded $1,000 per month in spousal maintenance from his VA disability pay by a state district court in 2010. That decision was later affirmed on appeal.

Barclay says that the pay is his and his alone, and that his view is supported by Title 28 of the U.S. Code, which states in Section 5301(a) that such benefits are immune “from taxation, claims of creditors, attachment, levy and seizure.” He maintains that the Oregon courts’ rulings are effectively a seizure of his property.

That claim faces a high hurdle, namely, the Supreme Court’s prior ruling in a 1987 case, in which the Court held that VA disability payments are intended to compensate both the disabled vet and his or her family.

Barclay challenges that on the ground that, while benefits are set at a higher amount by the VA if the disabled vet has a spouse, that extra amount gets erased in the event of a divorce. Barclay contends that the remaining amount is to compensate him alone, with his former spouse having no continuing claim on his pay.

Although Barclay’s hopes are high that the Court will hear his case, one noted military law expert expects the Court to deny the petition without comment.

Source: Herald Net, “Ruling sought on split of military benefits in divorce,” Tom Philpott, May 21, 2012