TN Divorce Court Cannot Touch Husband’s VA Disability Benefits

Tennessee case summary on VA disability benefits in divorce.

Link to Published Opinion

The husband and wife in this Montgomery County, Tennessee, case were married in 2009 and had two children.  They met in Germany while serving in the U.S. Army.  In 2001, they returned to the United States, where the husband enrolled in the University of Maryland as an active duty soldier.  In 2013, the husband went to Georgia to complete his training, and the wife and children moved to Tennessee to live with the wife’s mother.  When the husband was transferred to Fort Campbell, Kentucky, they purchased a home in Clarksville, Tennessee.  The marriage soon deteriorated, and the wife moved out in 2015.  She filed for divorce in 2016.  Under the final decree, the wife was named primary residential parent with 265 days parenting time.

The wife was also awarded a portion of the husband’s military retirement pay.  The court based its calculations on the finding that they had lived together as husband and wife for 75 months.  When doing the calculations, the lower court included an amount for sums taken by the husband in addition to or in lieu of pension, including his VA disability pay.  After some slight modifications, the husband appealed to the Tennessee Court of Appeals.

Under federal law, the pension calculation should be based upon the “high three” pay, and the husband first argued that the amount used for this figure was erroneous because the court had included months after the parties had physically separated.  He also argued that the VA disability benefits should not have been included.

The appeals court first agreed with the wife and held that the number of months used by the lower court was erroneous, because it should have been based on the date of the actual divorce rather than the date of the final separation.

But the husband fared better when it came to computing his “high three” pay.  This amount is the average of the highest pay during any 36 months.  In this case, the trial court had not used the 36 months immediately prior to the divorce.  The appeals court held that this was error.

The appeals court also agreed with the husband that the VA disability should not have been included in the calculation.  It held that this ruling was completely preempted by federal law, which made clear that only the actual pension could be considered, even though receipt of the VA benefits reduced the amount of the pension.

The appeals court also reviewed parenting issues and child support before remanding the case to the lower court.

No. M2017-02409-COA-R3-CV  (Tenn. Ct. App. Sep. 4,  2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Property Division in Tennessee Divorce.