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  • 1.  VA disability benefit

    Posted 06-27-2018 01:45 PM

    I represent a Vietnam vet, age 69, who was declared totally disabled in 2012. The disability benefit is allocated as 70% PTSD and 30%  physical, all related to his military service from 1966-1968. He married in 1970 and divorced in 2003. His only income is Social Security and the VA benefit. (He was using assets to maintain alimony which are now depleted.)

    I got an order for a plenary hearing in Bergen to modify/terminate alimony. I would like to argue that the 70% PTSD portion of the VA benefit  is in the nature of a pain and suffering disability pension as in Avallone and, as such, should not be considered as part of the income available for alimony. I have not been able to find anything to support that proposition thus far. There is another argument that, because the service was all pre-marital, none of it should be considered for alimony purposes.  

    Is my analysis sound? Can someone point me to some research I may have overlooked?

    Any suggestions are greatly appreciated.   

    Thank you in advance

     

    Arlene F. Albino, Esq.

    Fellow of the American Academy of Matrimonial Lawyers

    Certified Matrimonial Law Attorney

     

    Albino & Clark, LLC

    Attorneys at Law

    10 Poplar Tree Lane

    Sparta, New Jersey 07871

    (973) 729-3888

    (973) 729-4167 Facsimile

     

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  • 2.  RE: VA disability benefit

    Posted 06-27-2018 04:37 PM
    Arlene -
    <x-tab>        </x-tab>Not 100% on point, but I'm in the Appellate Division on a similar issue. As you may know, a state court cannot divide a military disability pension - its exempt / immune via Federal law. Many states, including NJ, have (via case law developed over time) compensated a non-titled spouse as a result of the loss of the share of the military disability pension funds (e.g., Judge says "I can't give you $100 from the military disability pension, so I'll give you $100 extra from the other pension or $10,000 extra from the house sale proceeds" or whatever). The US Supreme Court last may in Howell v. Howell held that doing this violates the Congressional intent as to the indivisibility of military disability pensions. It preempted all contrary state court rulings (which means the case I'm litigating will overturn Torwich and Whitfield).
    <x-tab>        </x-tab>So the trial court can't compensate a non-titled spouse by awarding alimony where it's otherwise not appropriate. BUT, this doesn't mean alimony can't ordered if it's otherwise appropriate, just that they can't order it to compensate for the loss of an expected share of a military disability pension. Read the Howell case.
    <x-tab>        </x-tab>The briefs (etc) are here:  http://www.dpdlaw.com/fattore


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    At 01:44 PM 6/27/2018, you wrote:

    I represent a Vietnam vet, age 69, who was declared totally disabled in 2012. The disability benefit is allocated as 70% PTSD and 30% physical,... -posted to the "Family Law Section" community

    I represent a Vietnam vet, age 69, who was declared totally disabled in 2012. The disability benefit is allocated as 70% PTSD and 30%  physical, all related to his military service from 1966-1968. He married in 1970 and divorced in 2003. His only income is Social Security and the VA benefit. (He was using assets to maintain alimony which are now depleted.)

    I got an order for a plenary hearing in Bergen to modify/terminate alimony. I would like to argue that the 70% PTSD portion of the VA benefit  is in the nature of a pain and suffering disability pension as in Avallone and, as such, should not be considered as part of the income available for alimony. I have not been able to find anything to support that proposition thus far. There is another argument that, because the service was all pre-marital, none of it should be considered for alimony purposes. 

    Is my analysis sound? Can someone point me to some research I may have overlooked?

    Any suggestions are greatly appreciated.  

    Thank you in advance

     

    Arlene F. Albino, Esq.

    Fellow of the American Academy of Matrimonial Lawyers

    Certified Matrimonial Law Attorney

     

    Albino & Clark, LLC

    Attorneys at Law

    10 Poplar Tree Lane

    Sparta, New Jersey 07871

    (973) 729-3888

    (973) 729-4167 Facsimile

     

    Confidentiality Note:

    This message is for the named person's use only.  It may contain confidential, proprietary or legally privileged information.  No confidentiality or privilege is waived or lost by any mis-transmission. If you receieve this message in error, please immediately delete it and all copies of it from your system, destroy any hard copies of it and notify the sender.  You must not, directly or indirectly, use, disclose, distribute, print or copy any part of this message if you are not the intended recipient.

     
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  • 3.  RE: VA disability benefit

    Posted 06-27-2018 04:55 PM
    Thank you!

    Sent from my iPhone



    Original Message