Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, November 13, 2005

Case Law Development: Consideration of VA Disability Benefits in Marital Property Awards and Maintenance

In an opinion providing an exhaustive review of cases from across the United States, the Illinois Court of Appeals held that a trial court may consider accumulated veterans disability benefits as a consideration in dividing marital property and in determining maintenance awards.  The court reviewed the case law interpreting 38 U.S.C.A. ยง 5301(a)(1) (2004), which prohibits the assignment or attachment of present or anticipated veteran's disability benefit payments. The court acknowledged that, given this statute, state trial courts may not divide present or anticipated VA disability benefits as a marital asset.

In this case, the trial court awarded a slightly larger share of the marital estate to Wife, in part because Husband's separate property included $28,000 in disability benefits Husband had accumulated and which had been deposited in the couple's bank account.  The federal statute prohibiting attachment of present and future disability payments, however, "did not preclude the trial court from acknowledging the existence of such funds as being available to [Husband] as nonmarital property.

Husband also argued that the trial court erred in denying his request for maintenance from Wife in that, here too, the trial court took into account Husband's VA disability benefits. The court of appeals held that consideration of disability payments in determining need for maintenance was not error.

Wojick v. Wojick, 2005 Ill. App. LEXIS 1098 (November 4, 2005).
Opinion on the web at (Last visited November 12, 2005 bgf)

Maintenance (alimony), Property Division | Permalink


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