March 9, 2008
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.
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Shaver |
Varner |
Swartzmiller |
Beach |
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.
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.
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.
(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.
(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.
§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.
(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.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.