State Courts Declare Open-Season on Veterans’ Disability Compensation
November 19, 2007 posted by Jere Beery · 5 Comments
Self-serving attorneys and judges have found ways to circumvent federal laws that prohibit third party awards of veteran’s benefits.
by Jere Beery
"Ah, yes, divorce … from the Latin word meaning 'to rip out a man's genitals through his wallet.'”–Robin Williams
Please allow me to take you on a brief journey. Try to imagine yourself as one of the many wounded military personnel (Man, or Woman) currently recovering from their combat injuries at Walter Reed or Brook Army Medical Center. Let’s pretend that you are a survivor of an RPG attack that has left you disfigured and disabled. Let’s say you have spent months in the hospital recuperating and in physical therapy. You have been awarded one of this nation’s highest awards for your service and sacrifice, the Purple Heart Medal. Your doctors tell you that you will be in some pain and on medications for the rest of your life, and that your disfiguring scars will fade a little with time…
Your body has become immune to your pain medications, and you are forced to just ‘deal with it’. Sleep is the only relief you have. When you can finally fall asleep, your body jerks violently waking you back up. Every time you close your eyes it is as if you were reliving/replaying the entire RPG explosion in your dreams over and over again. Your subconscious mind tries to convince yourself that ‘this time’ you will somehow jump out of the way of the rocket and not be hurt. But, when you are startled awake, the pain and discomfort reveals the ugly reality. On one hand you are extremely grateful to be alive, and on the other hand, you question your survival. You don’t yet understand that your wounds are both physical and emotional and that the physical and mental scars from your near-death experience are very deep and will follow you throughout your life until the day you die.
Now, allow me to elaborate even further. Let’s say your injuries qualify you for service-connected disability compensation from the Department of Veterans Affairs, and you receive a tax-exempt monthly disability check from the VA. And let’s say, in spite of your scars and disabilities, you are fortunate enough to find a mate and marry. Now, imagine your marriage decaying over several years to the point of divorce because your spouse no longer wishes to live with your jumping in your sleep. You are totally disabled and unable to work, and your only source of livelihood is your VA disability check. You provide the divorce court with a sworn financial statement that substantiates that your VA check is your only cash source and you have no other assets. The next thing you know, a civil court judge has awarded half of your VA disability compensation to your able-body non-military ex-spouse in the form of alimony, or spousal support. Your attorney advises you that there is nothing you can do about it, and withdraws from your case. You can’t afford to retain another lawyer, so you are faced with four basic decisions;
(1). Just shut up and pay the court order, or go to jail and then pay the order anyway.
(2). Find a pro-bono attorney to file an Appeal and fight for your earned veteran’s disability compensation.
(3). Leave the state and never return.
(4). Blow your brains out.
Sound far fetched? Not at all, in fact similar scenarios unfold in divorce courts nationwide everyday. Self-serving attorneys and judges have found ways to circumvent federal laws that prohibit third party awards of veteran’s benefits. The VA and our politicians turn a blind eye towards these civil courts as they wrongly interpret veteran’s disability compensation as a divisible marital asset.
Operation Firing For Effect (OFFE) is currently monitoring over two dozen cases in several states where disabled veterans are forced to pay alimony from their VA disability compensation or go to jail for contempt. In several of these cases totally disabled veterans have been jailed for not voluntarily giving up their VA disability compensation to a third party.
OFFE points to United States Code, Title 38, section 5301(a), which reads in part; ‘Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary’.
It is very clear what Congress intended when they wrote this legislation, and their wording leaves no gray area. Congress intended to totally protect veteran’s disability compensation from the greedy hands of anyone using these funds as a divisible consideration in any/all court proceedings in the land. Congress wanted to insure that a person that was injured in the line of duty was the sole recipient of their earned disability compensation, and that these tax-exempt funds not be diverted to an ineligible able-body non-military person.
Last Friday, November 17, 2007, Vietnam combat disabled veteran Calvin Murphy was ordered by Michigan Circuit Court Judge, James Batzer to pay his ex-spouse $800 a month until she remarries from his disability compensation, and Murphy was also ordered to pay his ex-wife’s attorney fees amounting to an additional $3000. According to sworn testimony from the former Mrs. Murphy, she could no longer live with Mr. Murphy and his combat-induced Post Traumatic Stress Disorder. She simply did not want to live with him any more. There were no claims of spousal abuse or infidelity made by Mrs. Murphy, and the Murphy’s have no minor children. At one point, attorney Connie Krusniak argued that Mrs. Murphy has suffered from Mr. Murphy’s PTSD bouts just as much as her husband has, and therefore she was entitle to a portion of Mr. Murphy’s VA disability compensation. Mr. Calvin Murphy was accused in open court of ‘romanticizing’ his combat military service in an attempt to avoid paying alimony. At another point in the testimony, Mr. Murphy’s attorney, Wendy Divozzo provided the court with certified receipts showing that Mrs. Murphy had a gambling habit and she had lost over $24,000 at one local casino since the Murphy’s had been separated. Judge Batzer refused to accept the argument that Mr. Murphy’s VA disability compensation was protected by federal statue and he ordered Mr. Murphy to pay or go to jail. Calvin Murphy is appealing the decision. However, to avoid being jailed in the meantime, Murphy has to pay the court order until his Appeal is heard. So, even if he wins his Appeal in the future, he loses a great deal of his earned veteran’s disability benefits now.
It doesn’t take a rocket scientist to see what is happening here. Divorce lawyers and civil court judges have found a ‘cash cow’ in veteran’s disability benefits and they are milking it dry. Many attorneys incorrectly think VA disability compensation funds are exactly the same as any other military retirement pay issue, and therefore divisible in a divorce. Many attorneys see veteran’s disability compensation as a means for their client to pay their legal fees. Therefore, attorneys have a vested interest in targeting a veteran’s disability compensation. Everyone wins in the divorce, except the disabled veteran.
Operation Firing For Effect and our team of veteran’s advocates nationwide have been watching this issue develop closely for some time now. We have contacted several federal agencies including the Department of Veterans Affairs. The VA claims that they are not a law enforcement agency and cannot enforce USC Title 38 in divorce courts. When we contacted several members of Congress, we were told that ‘they’ do not get involved in civil matters, nor do they interfere with the legal process in state family courts. When we contacted the Attorney General and Department of Justice, we were told judges cannot be held legally liable for their decisions; therefore, there is no violation of law. They suggested that ‘if’ a law had been broken, we should hire an attorney and prove it in the courts. OFFE has also contacted several national media outlets just to be told they only do stories on high profile celebrity divorces. Meanwhile, our combat wounded troops currently being nursed back to health at Walter Reed and Brook Army can take little comfort in the fact that their earned veteran’s disability compensation is not as protected as Title 38 suggest.
Calvin Murphy has pledged as long as his attorney sticks by him, he will take his Appeal all the way to the highest court in Washington DC if necessary.
Operation Firing For Effect can provide supporting documentation on more than two dozen cases where a service-connected disabled veteran’s VA disability compensation has been calculated into his divorce settlement as a divisible asset. This includes cases involving amputees and wheelchair bound disabled veterans. Please direct all media inquires to; jerebeery@aol.com
[NOTE: According Michigan Circuit Court Judge, James Batzer’s ruling in the Murphy divorce case, Mr. Murphy is to pay his ex-spouse $800 a month until she remarries. In other words, the former Mrs. Murphy can take another mate and as long as she doesn’t get ‘legally married’, she and her new mate will collect $800 a month, or until Mr. Murphy dies. That makes Judge Batzer’s ruling a ‘life time’ award.]
[Postscript: Recent statistics released by the Department of Veterans Affairs, the Department of Defense, and several national veteran’s service organizations reveal that divorce, homelessness, and suicides among former U.S. military personnel are considerably higher than national averages within the civilian population.]
Jere Beery
National Public Relations Director
Operation Firing For Effect
www.offe2008.org
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. Veterans Today has no affiliation whatsoever with the originator of this article nor is Veterans Today endorsed or sponsored by the originator. Any opinions expressed by the author(s) are not necessarily those of Veterans Today or representative of any staff member at Veterans Today.)
Judges overstepping. A veteran’s observation.
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How can state court judges waive away disability rights, and arbitrarily award as alimony a portion of a veteran’s disability rated compensation, determined on a case-by-case basis of a veteran’s whose disability rating that maybe, is factored in as critical? Judgment as if all disabilities are exactly the same? State court judges are overstepping those whose authority it belongs, in the practice of medicine, reevaluation, and rehabilitation of the veteran. And in doing so, ignorance of the law is no excuse, the law is quite clear, along with violating the canons of standard conduct for judges, violating “Authority for schedule for rating disabilities.” 38 USC 1155, “…, in no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred.” Violating as well, 38 USC 5301, 42 USC 1408.
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As veterans’ all too well know, state court judges upon eyeing a veterans disability compensation, and as well as Social Security disability, as alimony, the standards of judicial jurisprudence, and laws are totally ignored. However, the following federal judge’s ruling supports the standard for which state court judges are governed.
State can’t deny kids Medicaid services, judge says.
http://www.ajc.com/search/content/metro/stories/2008/06/16/medicaid_children_lawsuit.html
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“The decision last week by U.S. District Judge Thomas W. Thrash pertains to the case of a 13-year-old developmentally disabled girl, Anna C. Moore of Danielsville in north Georgia. Her doctor prescribed 94 hours of private duty nursing care a week for her, but the state Department of Community Health approved only 84 hours.
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The Atlanta federal judge found the state does not have the discretion to deny funding for services prescribed by a treating physician. “The decision affirms that treating physicians, and not the state, should make those decisions,” said the girl’s attorney, Joshua Norris of the nonprofit Georgia Advocacy Office.”
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VETERANS LAW JOURNAL
http://74.125.45.104/search?q=cache:se1h9j9w5GMJ:www.cavcbar.net/Fall_2004.pdf+the+statutes+in+broadly+precluding+judicial+review+of+the+contents&hl=en&ct=clnk&cd=11&gl=us
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A Quarterly Publication of the Court of Appeals for Veterans Claims
Bar Association
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“Thus, the Federal Circuit found that “[t]he statutory scheme … consistently excludes from judicial review all content of the ratings schedule as well as the Secretary’s actions in adopting or revising that content.” Looking at the legislative history, the Federal Circuit pointed out that “[t]he language in the legislative history is not limited to the percentages of the disability ratings, as appellants argue, but matches the statutes in broadly precluding judicial review of the contents of the disability rating schedule in toto.”
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Is this what returning veterans from Iraq and Afghanistan need? Come home to fight another battle? What needs to be done? As explained above briefly, you know your fellow veterans’ are taking a beating from judges in state divorce court. Seizing veterans’ VA disability compensation. Being awarded as alimony. These judges, although recognizing federal law, somehow justify their interpretation of 38 USC 5301 and 10 USC 1408, and the Supremacy Clause as not being perhaps strong enough. Now comes, 38 USC 1155, “Authority for schedule for rating disabilities”, this is possibly just what the disabled veteran needs to overcome the state court’s opposition and uncertainty, with a law that leaves no room for ambiguity in it’s meaning.
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I don’t believe 1155 argument has ever been tried, or introduced in court. Now is the time to test this. Once introduced, the court will have to deal and rule on this. If there are any upcoming veterans’ court divorce proceedings, or even possibly pending cases, the introduction of 1155 could possibly be the one thing that will challenge and remove, hopefully forever, another burden from our disabled veterans, at an unfortunate time in their lives. I hope you found this advice worthwhile. Please post this notice on your bulletin board, email, or newsletter, there may be a veteran that can benefit from this advice Thank you.
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William H. Heino Sr.
Hi Jere,
I was wondering if you have been receiving my e-mails. The congressional researchers have determined that the “intent” of Title 38 was that no one had the right to attach it. They are, as I write, writing a new law that will “put more teeth” into it and make it more enforceable. I don’t know how you’re doing with the attorney you’re dealing with, but my congressman got on it right away. If you want to kept apprised of the events, will gladly send you updates as soon as I know them. I may have more info by Feb 5th. My e-mail is pebro15@msn.com and home # is 860 376 3436. You can reach me most anytime.
It is easy to understand why civil court judges ignore federal laws and federal mandates: they are radical liberals and tyrants who think they are above the law. they have communist tendencies that essentially make them domestic enemies of the United States. military personnel take a mandatory oath that they must protect and defend the US from all enemies, foreign and domestic. often, it appears, these kind of judges either are not veterans, dislike or hate veterans and even persons still on active duty. maybe they think the court bailiff will protect them from foreign invasion, as in a full scale attack by an invading army against America. they are so arrogant and stupid they probably think so. some honest judges who uphold the law and protect disabled veterans from that part of society which is predatory, that will even exploit disabled veterans, have an uphill battle in their efforts to protect such veterans as persons preying on such veterans simply go judge shopping until they find one dishonest and dispicable enough to steal from, and in some cases imprison the veteran if he/she declines to be thusly exploited. judges who exploit veterans in this manner are in essence criminals who will at some point be held liable and accountable. there are ways to get them out of office, one way or another, through proper legal and social and political channels, which may be one of the best ways to deal with them.
i think the veterans like my self need to quit sitting on their asses and march to washingtone. if the voiice is loud enough well get the exposure we need and well be heard. you know why things got done in the 60s and 70s? because people werent scared to raise their voice. they protested, got media exposure and got the world behind them. i think we need a million man march of veterans and demand that the laws protect us and our money and the reorginazation of a crappy va. thats just my opinion. the question you should ask yourself is
IS THE FIGHT IN ME ALL GONE IF SO SHUT UP AND GO HOME
IF THERE IS A FIGHT STILL LEFT INSIDE YOU
RISE UP FOR THE THINGS YOU FOUGHT FOR
AND GET THEM OFF THEIR ASSES AND MAKE THEM MOVE
thats my opinion.
Gentlemen,
My wife convinced me after the reduction from active duty pay to disabled veteran pay that we could afford life easier in California. When we got there she promptly forced me out of the house and filed for seperation as fast as she could. I later found out that this was planned all along so that she could join the “Adidam” Cult down in Lake County, CA. She drained the accounts before we seperated and in the following months, guilted me into giving her most of my pay “for the children”. We went to court over the last two weeks and the Judge ordered me to pay her 1000 out of my disability compensation and also to reimburse her 2000 for attorney costs though her cult buddies had already financed this. The kicker is that the judge used my 70% PTSD rating to decide that I was a danger to my children. I now have to go on supervised visits with, you guessed it, her cult-buddies as the supervisors. Now, I don’t think I’ll be able to afford an attorney at all. The child support hearing is in August and I just know that I’m going to get hosed then, also. But, at least I’ll know that she’ll be able to afford the monthly tithe to the cult. I feel so warm and fuzzy inside.