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VA Disability, Divorce, Child Support, Alimony, Garnishment & Apportionment - YouTube
Channel: Chisholm Chisholm & Kilpatrick LTD
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[Music]
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so
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good afternoon and welcome to another
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edition of ccka live
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my name is lindy nash and i'm an
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attorney with the firm and joining me
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today
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are two of my colleagues kayla d'onofrio
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and bethany cook
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both accredited claims agents also with
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the firm
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and today we're going to be talking
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about divorce
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and certain things that come along with
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that and how your va disability benefits
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may be
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impacted by divorce child support
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alimony apportionment and so on so if
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you're considering a divorce from your
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spouse or going through
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you know a tough time with that and
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maybe in the middle of one and you have
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some questions
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this video could be really beneficial
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for you uh so that is the topic for
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today and if we don't get to your
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uh question please feel free to check
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out our website www.cckdashlaw.com
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there are some really helpful blogs on
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there not just about
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divorce and apportionment but about all
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sorts of different things relating to va
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law
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and va disability benefits so please
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head there to poke around and see if
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there's more
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that we can answer for you but today as
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i said
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the topic is divorce so let's get
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started there's a lot to touch on
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uh so as you can imagine every state in
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the country actually deals with divorce
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and child support and alimony in a
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different way no state is really
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perfectly the same they all kind of do
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it a little bit differently
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but for the most part they have some
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similarities where when you get divorced
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community property or things that were
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you know gathered during the course of
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your marriage are often split equally
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between
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spouses so whether you come to that
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agreement together or a judge
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you know comes to that that is usually
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one of the first things that is done and
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if it's non-marital property meaning
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something that
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you brought to the marriage or acquired
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prior to getting married
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that usually stays with that party um
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again unless there's an agreement
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between the parties you know prior to
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the marriage or during or after
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but anyway that's kind of the gist of it
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however there are
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federal laws that regulate the
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distribution of va disability benefits
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and they do provide some protections for
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veterans disability benefits because
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it is a unique benefit and something
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that is given in certain circumstances
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so we're going to touch on
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all sorts of things like that today just
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to be extra clear as to
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what can be done in these circumstances
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so just to start really generally
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why don't we start with our va
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disability benefits considered
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assets in a divorce so are they
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considered part of that community
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property
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bethany what do you say so the short
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answer is
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no va disability benefits are not
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considered
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assets in a divorce they are
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protected by the uniformed services
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former spouses protection act
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which exempts va disability benefits
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from being divided in a divorce
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uh va disability benefits are not
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considered marital or community property
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yeah i was just going to say great that
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exactly touches on what we were just
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explaining about you know what is
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marital property community property
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can it be divided and so i think you
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were just about to get into this but
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is there an exception for uh military
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retirement pay
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yep so uh this was specific to va
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disability benefits
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uh so military retirement uh can be a
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marital asset that is subject to
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division by a family court
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okay okay great so if you do have
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military retirement
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that can be uh taken into account by a
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judge and it can be
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divided and potentially given to your
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ex-husband or wife
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yes uh so and that is moving on to that
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the next
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topic but military retirement can be
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garnished by the government
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so yeah as you just alluded to let's
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move a little bit on to
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the topic of garnishment due to deaths
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and
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really whether disability benefits can
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be garnished at all so
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why don't we start with just the really
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general question of
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what is garnishment so kayla what is
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garnishment so
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garnishment is when money is taken away
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or
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seized from an individual um in order to
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satisfy some sort of outstanding debt
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that they
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um may owe whether it's for the
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government or for another purpose
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okay okay great so with that said can
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va disability benefits be garnished and
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in other words can they be taken to pay
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off
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a debt um generally speaking yes they
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can but only if the veteran has
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waived military retired pay to receive
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that compensation
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um so you know when you have you know
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your military retirement pay there are
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certain offsets that go into whether you
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can receive your full amount of
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compensation and
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um the full amount of retirement pay
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we're not going to get into
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sort of how those offsets work today but
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basically you can't receive both unless
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you're you know rated at certain levels
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and even then there's offsets
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um so when va is looking at whether they
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can garnish benefits they're only
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looking at
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whether you've waived your retirement
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pay and only um those compensation
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benefits would be
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subject to garnishment so only the
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amount
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of disability that's paid in place of
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the retirement pay can be garnished
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and the remaining amount would be
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protected from garnishment so
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anything that you would have been paid
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regardless of you know waiving that
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retirement pay
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should be protected and can't be taken
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um
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if a veteran hasn't waived their
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retirement pay then their ba their va
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benefits can't be garnished for
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any of the reasons okay got it so with
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that said
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when you know say you have waived
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retirement pay
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how is garnishment really done you know
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is your whole monthly compensation
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taken to satisfy a debt or really how
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does that work
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so when va is looking into how much is
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going to be garnished they're going to
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take a couple of different things
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into consideration to determine what
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amount can be reasonably garnished
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so the biggest thing that they're going
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to be looking at is the veterans
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financial picture
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and what their income looks like if va
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disability is really their only source
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of income
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they're not going to take you know an
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amount that's going to cause any sort of
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undue financial hardship to the veteran
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they're also going to be looking at
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whether the veteran has any additional
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special needs that would require some
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additional income so again they're just
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not going to take money away that
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is going to cause you know undue
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hardship to the veteran and cause them
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to not be able to care for themselves
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properly
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if va finds that the disability
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compensation is their only source of
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income
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then they can't be the the disability
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can't be garnished
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um to to pay off the credit debts or
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medical debts or
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you know student loans taxes anything
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like that um that money should be
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protected
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again because they don't want to cause
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financial hardship to the veteran
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right okay okay well that's great so it
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won't be one swift movement where
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other things aren't taken into
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consideration it should take into
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account
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you know your uh financial status and
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what other things you have going on
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correct yes okay okay great
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so with that general discussion of
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garnishment let's move
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forward and talk a little bit about
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alimony and child support so these are
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two
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really important things that come up in
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divorces all the time
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and we'll touch on those really quickly
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and then get into
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uh how your benefits relate to them um
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so just in a general sense
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uh for those who may not know alimony is
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basically a court-ordered
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uh legal obligation for one person to
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provide financial support to their
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spouse or ex-spouse after separation
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um typically it terminates when the
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spouse who's receiving that financial
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support remarries
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but basically it's a way to you know for
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one spouse to kind of support the other
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and make sure that they're able to um
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you know stand on their own two feet and
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move forward sometimes certain
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uh things are given up during a marriage
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or one spouse you know
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quits their job or doesn't finish school
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to support the other spouse
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and things like that so this is a way
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for the court system or for
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two parties to kind of make things as
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even as possible
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after a separation so that's alimony and
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then child support
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is basically an agreement that can be
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made between the two parties or can be
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made in a court setting
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so from a judge and it basically just
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orders
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one spouse to again pay the other spouse
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who is likely in primary physical
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custody of any minor children
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and it's just a monetary payment to help
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support um
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you know the raising of those kids or
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you know to give them some time
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some sort of financial benefit uh to
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help pay for food and clothing and
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transportation and things along those
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lines so that
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you know one spouse doesn't have a
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heavier burden than the other so
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as i said alimony and child support are
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two things that come along and
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hand-in-hand with divorce and occur uh
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pretty frequently so
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let's talk about uh if a spouse or
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ex-spouse is ordered to pay alimony or
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child support
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how your va disability benefits may be
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uh incorporated into that
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so um bethany let's start with just
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something really basic
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can va benefits be taken into account
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when the court is looking at
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a veteran's income for child support and
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alimony purposes
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sure so yes they can
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va benefits would be counted towards a
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veteran's income
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for child support purposes so courts
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would use
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a veteran's monthly va benefits to
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calculate the child support payments
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va benefits are tax-free so the entire
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amount of the compensation
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would be considered in a family's courts
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in a family's court
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determination of child support okay
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great and so
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unfortunately sometimes the court
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systems have to deal with
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when uh the spouse who's ordered to pay
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child support or alimony
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actually isn't paying so it's um it's
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frequent where
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some spouse isn't able to pay the full
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amount of child support or
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you know not able to make those monthly
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payments and so if that is the case if a
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veteran fails to pay
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the ordered child support or the ordered
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alimony payment
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could their va benefit be garnished by
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the government so it could in specific
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circumstances
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there was a supreme court case rose v
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rose that determined
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that in certain circumstances of
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veterans of va disability benefits
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could be garnished if they were failing
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to pay the child support payments
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okay great and so along those lines
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would child support or alimony
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automatically be taken out of the
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veterans benefits
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uh no it wouldn't be so how how it works
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for va benefits is that the
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uh estranged spouse or an expert on
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behalf of the dependent child
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they would have to file for
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apportionment apportionment
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sorry and the apportionment would have
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to be granted
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by the va in order for the veterans
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disability benefits to be garnished
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okay great thank you so um on the topic
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of apportionment
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let's go there and dig a little bit
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deeper to explain what that really is
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so kayla can you tell us what is
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apportionment
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uh yeah so apportionment is when um part
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of the veteran's disability compensation
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um is given to another eligible person
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such as the spouse the child dependent
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parent
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someone who the veteran is financially
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responsible for
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so what happens when part of the
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veterans check is abortion is that va
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takes
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whatever you know amount they deem you
[681]
know reasonable and necessary
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directly from the veterans check and it
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sends it to
[686]
um to the apportion apportiony um so
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the veteran's check would thereby be
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reduced by you know whatever amount
[693]
um is being apportioned to um to the
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defendant
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okay great and so i assume not anyone
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can just file for apportionment so who
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qualifies for that
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so in general um those who qualify
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include estranged spouses or children
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of the veteran children in estranged
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spouses custody
[713]
a child who's maybe not in the custody
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of either the veteran or the estranged
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spouse
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and who is not getting you know
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reasonable financial support from either
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the veteran or
[722]
on the spouse or a dependent parent so
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va's really looking at
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um you know whether the person filing
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for apportionment demonstrates an actual
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need for that apportioned money
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um if the veteran isn't you know
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supporting the family member that
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they're legally responsible for
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or if they're not you know keeping up
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with their alimony or child support
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payments
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that's when va will look at whether
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apportionment um
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is is necessary and is reasonable okay
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okay great and so say
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you are one of those people and you file
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for apportionment
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uh when would it not qualify so when
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would you be
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you know turn down if you will or
[757]
apportionment not be approved
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um so first the thing you know we kind
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of touched upon earlier is that
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if you are looking to have a portion of
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the veterans benefits apportioned to you
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you have to file for it so it's not
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something that is going to automatically
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be granted
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otherwise it's not going to be granted
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if that apportioned amount is going to
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cause undue financial hardship to the
[779]
veteran
[779]
again they just don't want to take away
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you know the veterans livelihood if they
[782]
don't really have anything else to
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survive on
[785]
if the veteran's former spouse is filing
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and they
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are holding him or herself as married to
[792]
or living with another person and they
[794]
were led to believe that their marriage
[796]
to the veteran
[796]
was terminated i'm sorry unless they
[799]
believe
[800]
um their marriage to the veteran was
[802]
terminated um
[804]
and if the child who is filing for
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apportionment if they've been legally
[808]
adopted by another person
[809]
um they wouldn't be eligible um the
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veteran would no longer be financially
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responsible for that child
[816]
and the last reason that someone
[817]
wouldn't be eligible is if they are
[820]
a child of the veteran and they're under
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the age of 18 but they are currently in
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active military service they would no
[825]
longer be eligible for that benefit
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okay okay great thank you so assuming
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that you
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are an eligible you know dependent
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parent or spouse or whatever the
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situation may be
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and it wouldn't cause undue financial
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hardship to the veteran
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what exactly happens after someone files
[843]
for apportionment bethany
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sure so a request for apportionment
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works like a claim
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uh it's uh the va will under basically
[850]
undergo
[851]
development if the eligible person
[854]
didn't submit financial
[856]
uh statements in support of their
[857]
request va will
[860]
often request that both the veteran and
[862]
the person filing for the apportionment
[864]
uh submit evidence uh showing uh maybe
[867]
on the veterans
[868]
part if the apportionment would result
[871]
in financial hardship for them
[873]
and on the eligible person filing for it
[877]
they would need to submit documents
[879]
showing that the apportionment
[881]
is necessary um once a va has the
[885]
evidence they're going to
[887]
issue a decision either granting or
[890]
denying the apportionment
[892]
and that va decision will also determine
[894]
the amount
[895]
of the appointment if it was granted
[898]
at that point in time either the veteran
[901]
or the person filing for the
[902]
apportionment
[903]
could appeal the va's decision if they
[906]
weren't happy with it
[908]
and a veteran could also file for a
[911]
hardship reduction
[912]
of the apportioned amount uh if they are
[915]
unable to
[916]
meet their financial needs because of
[917]
the amount that uh the va has decided to
[920]
be apportioned
[921]
okay great so even if uh you know
[923]
apportionment is granted but the veteran
[924]
feels that it's too big of a financial
[926]
strain
[927]
or maybe their financial situation has
[929]
changed they are able to
[931]
appeal or bring it to the va's attention
[933]
and say hey you know that doesn't work
[934]
out for me
[935]
it's too much as long as you demonstrate
[936]
that need exactly
[938]
and it's the same thing for the person
[940]
who filed for the apportionment i think
[942]
it's important to know that they could
[944]
also appeal the decision
[945]
uh if they were unhappy with the va's
[948]
decision
[948]
okay great excellent point so
[952]
although not totally on the topic of
[953]
divorce are there any other
[955]
instances where apportionment can be
[957]
filed yes so uh this one uh
[959]
you can kind of think of it as maybe uh
[961]
working a little bit more in the
[963]
veterans favor
[964]
so spouses of veterans who are
[966]
incarcerated may file
[968]
for an apportionment of the veterans
[969]
benefits so this would be helpful in a
[972]
case where a veteran is incarcerated and
[974]
as a result their monthly benefits are
[976]
being reduced
[977]
in that case the veteran spouse might be
[980]
able to request
[981]
an apportionment and in that case the
[983]
total of the veterans payments could be
[985]
paid to the spouse
[986]
uh instead of the reduced amount that's
[988]
going to the veteran
[989]
okay great yeah that's another example
[991]
where i feel like we
[992]
see probably apportionment most often
[994]
when a veteran has been incarcerated and
[997]
like you said their
[998]
spouse would like to receive the full
[1000]
monthly benefit instead of that
[1001]
decreased
[1002]
uh 10 amount as if they were in uh
[1005]
incarcerated so
[1006]
that is good to know that you can file
[1008]
for apportionment not just in
[1010]
these divorce circumstances or you know
[1012]
estranged spouse circumstances but in
[1014]
other ways as well
[1015]
so we've touched on a lot of topics
[1017]
today divorce
[1018]
apportionment child custody child
[1021]
support excuse me
[1022]
alimony and everything in between so do
[1025]
you have any
[1026]
closing thoughts uh kayla or bethany for
[1029]
someone who might be
[1030]
in the middle of a divorce or thinking
[1032]
about it
[1033]
any tips um i would just say that with
[1036]
all of the
[1037]
you know ways that va benefits can be
[1039]
garnished or how apportionment works
[1041]
it's you know it's even more confusing
[1043]
than kind of what we see in our normal
[1045]
appeals process which is already very
[1047]
confusing um
[1048]
there's you know more people involved
[1050]
there's different forms different
[1052]
deadlines
[1053]
um and there's just kind of a lot more
[1054]
going on in general different evidence
[1056]
that needs to be submitted for for both
[1058]
parties
[1058]
um so if you're a veteran and someone is
[1061]
filing for apportionment of your claims
[1063]
or if you're you know filing for
[1064]
apportionment of the veterans claims
[1066]
um i would recommend you know reaching
[1068]
out to you know a vso
[1070]
or a private attorney um to help you
[1072]
kind of sort through all of the
[1073]
different
[1074]
pieces that you know are involved in
[1076]
getting those benefits and
[1078]
you know making sure that they're
[1079]
reasonably granted or denied
[1081]
i would just add that if you are a
[1083]
veteran and you are going through a
[1085]
divorce or you might be in a situation
[1087]
where someone could be requesting an
[1088]
apportionment
[1089]
i would just say to try and stay
[1091]
informed if possible a lot of the times
[1093]
veterans might not know
[1094]
that someone has requested an
[1096]
apportionment until they get the
[1097]
decision from the va
[1099]
uh so i would uh just caution to keep an
[1101]
eye on ebenefits stay in contact with
[1103]
the va
[1104]
just so that if this is happening the
[1106]
veteran can know
[1108]
um if there's anything they need to be
[1110]
submitting so that they don't get a
[1112]
decision they're not expecting
[1114]
all right that is great advice thank you
[1116]
both so much for your time today and
[1118]
thank you everyone for
[1119]
tuning in and like i said in the
[1120]
beginning if you have more questions
[1123]
or would like to know more about va
[1124]
disability benefits please go to our
[1126]
website
[1127]
cck dashlaw.com uh and also
[1130]
like kayla said this is complicated
[1132]
stuff it is not
[1133]
simple uh and easy and it can be really
[1136]
tough so feel free to reach out to
[1138]
a local vso or call a private attorney
[1141]
and get some more information so that
[1143]
you're fully informed and you know
[1145]
what is going on in your case all right
[1147]
well thank you both so much
[1149]
and we will see you soon
[1163]
[Music]
[1183]
you
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